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SOME ACCOUNT OF
GEORGE WILLIAM WILSHERE
BARON BRAMWELL

BARON BRAMWELL.

SOME ACCOUNT OF

GEORGE WILLIAM WILSHERE
BARON BRAMWELL

OF HEVER

AND HIS OPINIONS

i:v
CHARLES FAIRFIELD

WITH A PORTRAIT

Hotiion
MACMILLAN AND CO., Limited
NEW YORK : THE MACMILLAN COMPANY
1898

PREFACE
Thanks are due and are hereby given to sundry
persons who lent letters from Lord Bramwell for
use in this volume ; also to the proprietors of the
Times, for permitting the republication of Lord
Bramwell's many letters to the editor ; also to the
proprietor and to the editor of the Economist, for a
similar favour, as well as for other courtesies ; also
to Mr. James Knowles, proprietor of the Nineteenth
Century Review, who was good enough to allow
Lord Bramwell's article, June, 1885, to be reprinted
(pp. 264-274). The portrait frontispiece is repro
duced by kind permission of Messrs. Fradelle and
Young, 283, Oxford Street, W.

CONTENTS

CHAPTEP. PAGE
I. LEARNER ...... I
II. JUDGE . . . . . . 23
III. ' THE POLITICAL ECONOMY OF OUR YOUTH ' . -79
IV. PLAIN WHIG PRINCIPLES . . . -94
V. THE REACTION AGAINST 'PLAIN WHIG PRINCIPLES' . 155
VI. CONTRACT OR STATUS? .... 176
VII. LAND TENURE AND CONTRACT . . . 2O0
VIII. TEETOTAL LOGIC — LEASEHOLD ENFRANCHISEMENT —
LAND LEAGUE JURISPRUDENCE . . .254
IX. ANTI- RAILWAY AGITATION — ¦ TITHE RENT- CHARGE 
WATER-RATES — COPYHOLD — COMPANIES ACT, 1862 302
X. THE ARGUMENT FROM COMMON LAW , . . 333
XL THE LAST CHAPTER . . . . -367
INDEX ....... 374

ERRATA.
On page 4, ' ipsi,' instead of ' ipse.'
81, ' 1891 ' should be ' 1892.'
96, asterisk should follow ' Lords,' in line 1.
,, 174, footnote, ' p. 320 ' should be ' p. 318.'

A MEMOIR

OF

LORD BRAMWELL

CHAPTER I.
LEARNER.
Monotonous faultlessness of bur Judges — Their apologia never
called for — None wanted in Lord Bramwell's case —
Parentage — School-days — Clerk in a City bank — Early
marriage — Studies law under a special pleader — Sir G.
Bramwell's description of special pleading— Tries it for
a while — Called to the Bar — Speedy success on Home
Circuit, and large practice in commercial cases — A Judge
at forty-seven.
The memoir of each memorable Judge which Her
Majesty's public constructs for itself is : ' He sat
there and did what was right, and is dead.' The
reasons why Her Majesty's Judges are, of all the
nation's worthies, most readily forgotten may be
deemed honourable alike to those illustrious magis
trates themselves and to the English and Scottish
people, immortality being so largely the ungracious
gift of a man's enemies, often remaining conditional
until made absolute by strenuous praise or apology
i

2 A MEMOIR OF LORD BRAMWELL
wrung from the dead great one's admirers. Thus,
hate is the brine which preserved memory of
Henry VIII., of the two Marys, the two Cromwells,
Marlborough, Walpole, Pitt, of celebrities concern
ing whom vindications have been written — long
enough for historical reaction in their favour to set
in. Prince Bismarck can never be forgotten until
the jaded French language will yield no more
angry epigrams ; Lord Beaconsfield until the last
trespasser has annexed the last primrose root, and
the last Conservative Government prohibits impor
tation of these irritating flowers through the Custom
House — to protect trespassers from cut-throat com
petition. English and Scottish Judges remaining
singularly unhated, hors concours, are out of range
even of newspaper attacks. In the introduction to
a recent ' History of Trade Unionism,' the bare
fact that it was Baron Bramwell who, August 21,
1867, delivered the charge in Reg. v. Druitt and
others is coldly recorded. Vengeance is left to the
collective conscience, although the principles Baron
Bramwell laid down, that Trade Union pickets may
not beat free labourers and that ' . . . the liberty
of a man's mind and will, to say how he shall bestow
himself, his means, his talent, and his industry, is
as much a subject of the law's protection as is that
of his body . . .,' probably seem to the author of
the work, and to his disciples, the quintessence of
judge-made lawlessness. Also from the lowest
story of the social edifice testimony is not wantino-
to popular appreciation of our Judges. A hulking
labourer was once sentenced by the late Judge

NOTHING TO EXTENUATE

Bodkin, for the second time, to penal servitude, for
half killing a policeman. As the batch of prisoners
were going down the stairs from dock to cells, a
pickpocket, who had just got a few months' im
prisonment, cursed his honour the Judge audibly.
' Hold your noise,' said the labourer ; 'that toff in
the klobber wig often and often defended my poor
old mother, and arter the case was over he'd slip the
fee back into her hand, and say, " 'Ere, you want it
more nor I do." '
All manner of men in the land, tacitly agreeing
that none of Her Majesty's Judges can do wrong,
take their revenge, so to speak, by speedily for
getting these their most faultless servants. Mayhap
the British public will condescend to talk about a
legal celebrity if the first letter of his surname
suggests an ugly alliterative nickname, if he was
disbarred in later life, if his wife utters proverbs, if
he was too partial to stimulants, if his father was
a barber, or his sons got into disgrace. Lord
Bramwell left no enemies and made no mistakes ;
that docks the length of the pleadings in his case.
No awkwardnesses remain for indulgent friends to
explain away ; no blunders, of the kind which gives
the ingenious critic an opportunity of showing how
much better he could have managed things himself.
The rather cheap and obvious criticism of ' the
School ' represented by his great predecessor at
the Exchequer has never been applied to Lord
Bramwell's law. He never gave the nation an
ugly quarter of an hour, as the wittiest, most brilliant
and most cynical of Chancellors did. There was no
i — 2

4 A MEMOIR OF LORD BRAMWELL
dubious political romance, no domestic linen washed
in public for the profession, the press, and the
gossips to shrug their shoulders over and forget
as quickly as possible, in consideration of other
virtues. From first to last Lord Bramwell owed nothing
to ' interest ' (a word of oppressive significance fifty
or sixty years ago, when he tried his fortune at the
Bar). He had at first no powerful friends nor family
connections ; very little money. There is a legend
that his grandfather was a tradesman in the City of
London, an initial disability which required some sur
mounting, a.d. 1838. At Trinity College, Dublin,
June 30, 1887, after Lord Rosse, Chancellor, had
conferred the Honorary degree, Professor Webb, in
the customary Latin oration, said of Lord Bramwell,
omnia sua sibi ipse debet ; which was true in a wide
sense. Further, he owed success, the physical
power to struggle for success, very largely to his
sound, healthy begetting. The corpus sanum which
gave the -mens sana so fine a chance all his life, he
got from his progenitors — his father, a precise, con
scientious business man of the antique school, head-
clerk, ultimately partner, in the banking firm of
Dorrien, Magens,* Dorrien, and Mello, 22, Finch
Lane, since amalgamated with Glyn, Mills, Currie,
and Co. ; his mother a woman of great force of
character, who lived to the age of ninety-six. Only
those who now have white hair can recollect when
* Son of Nicholas Magens, or Magends, a German merchant
settled in London, author of many works on insurance ex
change, etc.; died 1764.

OTHER BRAMWELLS

there were such English mothers as his. The name
of Bramwell has been from time immemorial a good
yeoman name in the bleak, bracing North Country,
about Lowther and Penrith in Westmorland. One
of the name, John Bramwell (born 1718, died at
Newcastle-on-Tyne, 1790), lived at Penrith, and
married in 1742. His wife Anne (born 1724,
died 1773) with patriotic precision bore him
seven children. The eldest, Thomas, born 1743,
seems to have been a Captain in His Majesty's
service, and lies buried in Kirkby Lonsdale church
yard. The second son, William, born 1745, by his
will dated September, 1 786, left ' housing lands and
premises ' at Beckhead in Witherslack (at one time
the home of Addison, of the Spectator), as well as
personal property. There was a son, George, born
to John and Anne Bramwell in 1749. Then came
a daughter, Margaret, married in 1784 to Thomas
Jackson. A daughter of this marriage, also a
Margaret, married to John Smith of the Bury,
Stevenage, used often to tell her daughter (Mrs.
Margaret Long, living, 1897, at Eye, Peterborough)
of havine carried Lord Bramwell in her arms when
he was a baby of a year or so old — an incident one
would not lightly forget. An entry in this lady's
diary shows that she was visiting Lord Bram
well's father and mother in London in 1809 and
1810. Their eldest son, afterwards Lord Bramwell, born
within sound of Bow Bells, June 12, 1808, was
christened George William Wilshere. At the age
of twelve he was sent to Palace School, Enfield,

A MEMOIR OF LORD BRAMWELL

kept by Dr. May.* Thither his younger brother,
Harry, went also. When George Bramwell's thir
teenth birthday drew nigh, he asked his father for
three things : a watch, a large cake, apparently for
the purpose of increasing his popularity, and some
money. On June n, [821, his father wrote:
' With this you will receive a watch, which I hope you will
be pleased with, which I request you will not put out of order.
The gold seal and key has been added by your mother's desire.
I wish you many years of health and happiness to wear the
same. I hope you will carefully mark the ebb of time, and
make the best use of it, so that you may turn out an honest
and clever man. You will also receive a cake, which I think
you will find capacious enough for your purpose. As for money,
you can want but little, as you will be at home on Thursday. . . .
To-morrow your mother, myself & Co. will drink your health,
wishing you many, many happy returns of the day.'
Among Lord Bramwell's papers, together with
letters of fifty or sixty years later, from Peers,
Cabinet Ministers, Archbishops, Bishops, Cardinals,
Judges, and such famous personages, are a few of
his father's letters of this time in faded brown ink,
the clumsy old twopenny post-marks on the back.
Stray words here and there prove that there was
great and diligent affection between father, mother,
and children. But no weak indulgence : George and
Harry must walk all the way from Enfield to Finch
Lane if they will insist on coming home at Easter.
One gets a glimpse of matters at Dr. May's from
this fine schoolboy letter ; the writer is half sorry
at having stepped out into the spacious world, half
inclined to patronize Dr. May's ' fellows ' :
* See note, p. 2*.

THE BOY OF THE PERIOD

'June 7, 1824.
1 My dear George,
' I received your letter yesterday ; I could not receive it
before. ... I am glad to see you are first on the Credit List.
I think you deserve it, mind ... if I were to go back to^
school again, I should not be so idle as I was formerly. Tell
Mr. Jones he would have no occasion to turn me into the
middle of the room every prosidy morning. I suppose old
Jackson and a few more fill my station ? I met old Westwood
the other day ; he was covered over with black ink, and as
dirty as the devil himself. I am quite ruined, so says that
old Raven Craw. Tom Spring and Langan fight to-morrow.
Success to the best man ! Town is quite empty ' (the letter
is dated Red Lion Square). ' Remember me kindly to old
friends and companions. Item to Mr. Bates, Mr. Jones, Mr.
Sugden, and Jem. Tell C. Holt I can write better than he
now. 1 Yours ever,
' Cossam McRitchie.'
George Bramwell must have been a big, silent,
self-willed boy at this time, not ornamental, with the
superior bull-terrier expression of the true English
schoolboy, able to use his two fists a bit, utterly
unlikely, therefore, to commit suicide if chaffed by
his companions about his opinions. He and his
brothers inherited from their mother genius — rare
mental powers. Knack of mental concentration,
and easy grip of each task before him, put him at
the head of the school when he was fifteen. He
must early have suspected that he could sail round
most schoolbook problems ; that difficulties which
puzzled and daunted other people need not daunt
him. Similar suspicions he modestly kept to him
self for ten or twenty years after leaving school.
Very quickly solicitors having business within the

A MEMOIR OF LORD BRAMWELL

Home Circuit shared them. The future Lord
Bramwell never went to a University. It was im
possible — chronologically impossible, of course — for
him to 'come under Jowett's influence.' Perhaps
just as well. At the age of sixteen he was taken
into Dorrien's Bank, beginning, no doubt, as ' walk
clerk.' It has been well remarked that what he
learnt there must have been useful to him at the
Bar in commercial cases. To lose, by dint of
everyday familiarity, one's awe of those bewildering
documents bankers deal with is an education in itself.
Probably at first he duly went the rounds every
morning with bill-case chained to his waist, ' collect
ing.' Later, helping at book-keeping and discount
ing work, he would learn the why and wherefore of
bills, cheques, drafts, bottomry bonds, bills of lading,
dock warrants, etc., how and where they ought to be
endorsed, the stamps and fees required, and so forth.
In 1829 he is living at Finch Lane, already a bit of
a politician — a Liberal, as most City men were then,
rejoicing, he tells us (p. 101) at the passing of the
Catholic Relief Bill ; head of the house in the
absence of his father, who writes from Margate,
September 16, 1829, that he will return to London
by seven o'clock, and ' tell Patty to get me a rump-
steak for supper and some stewed eels, and whatever
else you like.' Strange food this for a banker.
In the following year, having no settled prospects,
he married (seemingly against the wishes of his
family and friends) a lady of Spanish origin,
daughter of Bruno Silva. They loved each other.
In 1836 she died. Whether such a marriage was a

FASCINATIONS OF THE LAW

wise or a foolish act none can decide, since all
tribunals are prejudiced, no evidence obtainable,
and the law made ad hoc by the parties always.
Seemingly, it was considered a very rash thing for
a bank clerk to do. After planning various careers
for himself, George Bramwell determined to go to
the Bar, and in 1830, in order to master that now
vanished craft known as ' special pleading,' became
pupil of Mr. (afterwards Sir) Fitzroy Kelly —
favourite pupil — when it was discovered by that
astute master that the quiet, confident young man
was good, not only at drudgery, but at high -class
brain work. Fifty-eight years afterwards*"" Lord
Bramwell told a British Association audience:
' One could suppose that every educated person would like
to have some acquaintance with the laws of his country ;
certainly that Englishmen would, since they are proud of their
laws and responsible for them. But it is said, " The law is so
dry." I deny it. No doubt, if you have to learn how to serve
a writ, how many days a defendant has before he need plead,
and so on, it is wearisome enough. But with respect to study
— not of the practice, but of the broad general principles of law
— it is quite otherwise. Of the four volumes of " Blackstone's
Commentaries," three, to my mind, are most agreeable reading ;
these general principles should be taught as part of ordinary
education.' Legal maxims, how they came to be invented,
and the application of them, had an intellectual
fascination for him from the first. His philosophy
of law he seems to have constructed by inductive
process, going back, step by step, from points raised
to rulings, thence to maxims, cited to reinforce
¦•'¦ ' Economics v. Socialism,' Pamphlet, L. and P. D. League,
1888.

10 A MEMOIR OF LORD BRAMWELL

rulings, until, at the outer circumference, he came
upon general principles governing the law of
England. The fine, logical completeness of it all
appealed to his inherited business instincts. The
trade of law which he had taken up was no mere
tissue of pedantries ; rather, a methodical scheme
for doing the right thing and confounding rogues
and fools. Afterwards he could reverse the in
ductive process, and, with all the more confidence
and satisfaction to himself, aided by his own common
sense, apply principles by deductive method, the
only one Judges are supposed to recognize.
On September 18, 1865, Chief Baron Pollock,
who also regarded legal principles from the point
of view of an intellectual gourmet, wrote :
' What is the pleasure derived from all this ? I apprehend it
is the discovery of a rule, or law. In mathematics one rarely
discovers the rule without discovering the reason. In physics
one never reaches causes ; it is merely grouping experiences.'
What young Mr. Bramwell had to learn in Mr.
Fitzroy Kelly's chambers between 1830 and 1833
may be gathered from these ' Further Suggestions '
(he called them a ' popular, untechnical statement of
the rules of Common Law procedure ' — they are
really an essay on the art of pleading), which Sir
George Bramwell submitted to the Judicature Com
mission, of which Lord Blackburn, Lord Coleridge,
and himself were members in 1867 :
' The pleadings begin by the plaintiff stating his case-
viz., those facts which, if true, show, as he contends, a right
to some judgment against the defendant. This statement is

AN EXTINCT CRAFT 11
called the declaration. The defendant meets this by denying
one or more of the facts ; as, for instance, if the action is
against the alleged acceptor of a bill, by denying his accept
ances, or by admitting the facts and avoiding them, as by
saying the plaintiff has released him. This is called the
defendant's plea ; or by admitting the facts, but denying their
legal sufficiency, this is called demurring. The plaintiff's reply
is called the replication ; and he, like the defendant, denies one
or more allegations in the plea, or confesses and avoids it, or
demurs to it. In like way there is the defendant's rejoinder,
the plaintiff's surrejoinder, the defendant's rebutter, and the
plaintiff's surrebutter, beyond which I never knew pleadings
extend, nor is there any distinctive name for them. The
pleadings stop when neither party has new matter to advance.
... I may add that a special plea is where the defendant pleads
specially instead of the general issue, or general denial of the
plaintiff's case, and the plaintiff's replication and all subsequent
pleadings may be special in like way. This is the origin of the
expression " special pleading."
' There are two leading features in the science or art of
pleading ; one is, that pleadings must be single. Originally
a plaintiff could support a claim on one ground only. For
instance, if he sued the drawer of a dishonoured bill, he could
not say in his declaration that he presented the bill, and further
say that the defendant exonerated him from presenting it; that
was double and wrong [" duplicity "]. He was obliged to rely
on one or the other ; so defendant could not plead that he did
not endorse the bill, and that it was not presented for payment;
that was double and wrong. In like way the plaintiff could
not reply that the release was not his deed, and that it was
obtained by fraud ; so of subsequent pleadings. . . . By a
statute of Anne, defendants were allowed to plead two or
more pleas by leave of the Court ; and by the Common Law
Procedure Act of 1852, plaintiffs and defendants were allowed
to reply and rejoin, surrejoin, rebut and surrebut two or more
matters ; and defendants and plaintiffs were allowed to plead
and demur, leave of a Judge for this double pleading being
necessary.

12 A MEMOIR OF LORD BRAMWELL

' This last enactment made an end of the substance of the
rule against "duplicity"; but the form has continued. For
instance, a plaintiff never now puts his case in the double or
alternative form, and says, " I presented the bill" ; and, further,
" Whether I did or not, you exonerated me." Nor does the
defendant plead in that way, but pleads each head of defence
separately, as : (i) " I did not endorse " ; (2) " You did not
present " ; (3) " A release " — and so on. The consequence is
enormous length and complexity. One claim may require four
counts, each of which necessitates several pleas, each plea
several replications, each replication several rejoinders ; so
that there may be 4 counts, 16 pleas, 64 replications, and
256 rejoinders ; and as every plea, replication, and rejoinder
may be denied, there may be 256 issues in law and fact. I
cannot say I ever knew of such a case ; tfut the following case
did come before the Court of Exchequer recently :
' It was an action against the Great Indian Peninsular Com
pany for the burning or loss of the luggage of an officer, a
passenger on the line. Count 1 said plaintiff was a passenger
on defendants' railway with luggage, and that the defendants
did not safely carry the luggage. Count 2 said plaintiff was
an officer in service of Her Majesty on duty, and was received
by defendants with his luggage, being necessaries as an officer
on duty, to be carried ; yet they did not safely carry the
luggage, nor use due care, but were so negligent that, through
their negligence, luggage was burned.
' The pleas were : (1) Not guilty ; (2) denial — defendants
were carriers of passengers and luggage ; (3) plaintiff was not
a passenger, as alleged; (4) to count 1, plaintiff was taken
as a passenger under a contract with Government, by which
defendants were to be under no responsibility for luggage;
(5) to count 1, that the matter complained of was by plaintiff's
default; (6) to count 1, that plaintiff was one of a body of
troops, and by their carelessness and wilful misconduct and
mutinous act luggage was lost ; (7) to count 2, same as plea 4 ;
(8) to count 2, same as plea 5 ; (9) to count 2, same as plea 6 ;
(10) to count .1, plaintiff was carried under a contract with
Government ; (11) to count 2, same as plea 10. The replica-

POSSIBILITIES OF PLEADING 13

tions were : (i) A denial of all the pleas ; (2) to plea 4, setting
out terms of contract, that luggage was to remain in charge of
guard provided by troops, and that luggage was burned through
gross negligence ; (3) demurrer to plea 4 ; (4) to plea 7, same
as replication to plea 4 ; (5) demurrer to plea 9 ; (6) demurrer
to plea 10; (7) demurrer to plea 4. (1) Rejoinder denial to
replications 2 and 4; (2) demurrer to replication 2 ; (3) demurrer
to replication 4.
' One cause of action had issue 2 counts. The 2 counts had
issue 1 1 pleas, 3 of which applied to both counts ; being in
effect, as they might have been in form, 14 in number. The
pleas had issue 7 replications, 1 of them being applicable to
10 of the pleas, and being in effect, as they might have been
in form, 12 in number; making, therefore, in the whole, 18.
These 18 replications had issue 3 rejoinders, in effect 4. The
pleadings raised 12 issues of fact, and 6 issues of law. . . .
' The case of the plaintiff was probably that he was a
passenger as an officer under a contract with the Crown, that
his baggage was burned either through carelessness of the
defendants or otherwise, and that either way they were liable.
Probably they had made no contract with the plaintiff, but
with the Crown, to whom alone they were accountable ; and
that if accountable to the plaintiff, and otherwise liable, the
clause in the contract exempted them, or the misconduct of
the plaintiff's troops did ; I say probably, and not certainly.
For it is a rule of pleading that it is sufficient to prove what it
was necessary to state ; the unnecessary fact not proved may
be treated as not alleged. The consequence is, the pleader
stuffs his pleadings with a quantity of matter to ensure the
pleas being good on the face of them, leaving the counsel at
the trial to prove as much as he can.
' The other feature of pleading is that, instead of the actual
facts being stated, the legal results or implications from them
are stated as facts. Thus, the defendant is said to have accepted
a bill. The truth is, it is drawn on, and accepted by another
person in that other person's name ; but the plaintiff contends
that, by reason of the defendant receiving some profits from
the business carried on by the acceptor, the defendant is a

14 A MEMOIR OF LORD BRAMWELL
partner with him, and liable as acceptor of a bill accepted in
the name in which the business is carried on. So the defendant
is said to break and enter the plaintiff's close if he gives a
warrant to distrain to a broker who enters for that purpose.
So if a man turns his wife out of doors without means of
support, goods supplied to her are said to be sold and delivered
to him, because she had an implied authority to bind him. . . .
I will now point out the mischiefs resulting from this last-
mentioned matter. In the first place, it causes pleadings to
fail in their very objects. They do not state the facts so as
to inform the opposite party, nor evolve the matters in dispute.
. . . The pleadings do not evolve what is in dispute as matter
of fact or matter of law. Hence, as we continually see, as soon
as the plaintiff's case at Nisi Prius is opened, it is found there
is no fact in dispute, and a verdict is taken with leave to move,
or a special case is stated, or the Judge directs a verdict or
nonsuit. In these cases all the expense of the trial, or nearly
so, is wasted. And even where one or more facts are in dispute,
all the preparation to prove the others not in dispute is need
less, and immense expense and trouble are incurred in vain.
No doubt this is much mitigated by respectable attorneys who
make reciprocal admissions. But to do this the attorney must
not only be honest and self-denying ; he must also be cool-
headed, and not led away by zeal for his client, and determined
to make his unjust adversary prove everything. This latter is
not so common a virtue. Further, points of law are sprung
on the opposite party and the Judge at the trial, which for want
of preparation and otherwise cannot then be discussed, and
consequently must be reserved, and facts then are disclosed
for the first time, which involves the necessity of new trials on
the ground of surprise. In the next place, mistakes are made,
and justice defeated on technicalities. A plaintiff must not
only make out a good case, but he must show he has used the
right form, that he is in the right in substance, and in the right
in saying his case was one of money had and received. Further,
injustice is worked by this fiction ; there is a form of declara
tion commonly called " trover," but in which the plaintiff says
the defendant converted the plaintiff's goods to the defendant's

A HAPLESS SHERIFF 15
use. It has been held, whether rightly or wrongly is not the
question, that, if a man assumes to dispose of another's property,
it is a conversion to the use of the person so assuming. I was
counsel in a case for the Sheriff where this fiction cost the officer
,£"7,000. The case was this : An attorney named Buchanan
Hoare had lent money for a client on some books ; he was
desirous of selling these books, and thought, why I know not,
that he would be safer in selling if he had them seized and sold
under a fi. fa. at the suit of his client on a judgment which
was part of the security. He issued the fi. fa., and took the
officer to the place where the books were in his (Hoare's)
custody, who accordingly left his man in possession ; after
wards the officer had them inventoried, valued, and a bill of
sale was made of them to Hoare or his client ; the officer then
left, leaving the books where and as he found them. Hoare
then sold the books. Someone who claimed the books — by
what title I forget, nor is it material— brought an action against
the Sheriff, who was held liable for a conversion, and had to
pay £"7,000 damages, and costs. It is impossible he could
have been liable for this if the actual facts had been stated. . . .
A foreign jurist coming to one of our Courts to be enlightened,
instead of hearing principles discussed, would hear the plaintiff's
counsel argue there was a conversion, and the defendant's that
there was not ; and the Judges would gravely discuss the same
matter ; cases would be cited to show what had been held to
be a conversion and what not. The origin of this is, that if a
case can be thus solved, trouble is saved to all parties, no
principles have to be enunciated nor established, and they are
very troublesome things. Lastly, as David Dudley Field said,
this mode of pleading is an impediment to a fusion of law and
equity. He made the remark as to forms of action ; they were
abolished in New York. . . . One thing at least is certain —
viz., that the Common Law pleading and Equity pleading
cannot both be right.'
He does not seem to have made a success of it
when he began as a special pleader on his own
account, and, as his friend Master Macdonell tells

16 A MEMOIR OF LORD BRAMWELL
us, earned but a pittance ; had not the right gifts or
limitations for some businesses ; made up his mind to
go to the Bar, and was 'called' May 4, 1838. One
who was his companion in those trying days says of
him : ' Though he had not received a brief, he was
always sanguine of success, feeling, as he expressed
it, that he had "got it in him," and meant to rise to
a seat on the Bench.' This faith he would impart
to his cousin, the late Edward Frith, the ' Ned ' of
his father's letters, and to Mr. B. E. Kennedy,* both
members of the Stock Exchange, over a cup of
bachelor-made coffee — very costly in those days —
at his chambers, after a dinner at the Cock, or Rain
bow in Fleet Street, they smoking their cigars, he
never smoking. All his life he snatched at chances
of picking up information from practical men ; from
these friends learnt technicalities and general rules
of Stock Exchange business and Committee ' law '
(for it is law, having the same origin as our Common
Law). They were excellent authorities, both in
later days large ' dealers ' in the railway market.
Thirty years afterwards (December 3, 1868) Sir
George Bramwell was one of the Judges who
decided the important Stock Exchange case of
Grissell v. Bristowe, in the Court of Exchequer
Chamber, Cockburn, C.J., presiding, the other
Judges being Lush, Kelly, Channell, and Pigott ;
and Stock Exchange members concluded that the
* Long a member of the Stock Exchange Committee ; now
(July, 1898) the oldest living member of the House, having
been admitted in March, 1836.

THE DULL YEARS THAT COUNT 17
knowledge thus early acquired must have been of
assistance to his brother Judges.
Judging from the point of view of 1897, the
London of 1837 must have been a dingy and
depressing place for a briefless barrister who had
quarrelled with his relatives. Dickens pictures the
then professional and social life of the middle classes
as a blend of dingy formality, vulgarity and mauvaise
honte. Thackeray tells us that there were no
restaurants in the City — nowhere to get a dinner,
save the tavern for the rich and the cook-shop for
others. Clothes, travelling, books, newspapers,
many luxuries now considered indispensable by all
classes, were scarce and dear. George Bramwell
concluded that if he wanted such things, or more
desirable ones, he must work for them. That he
could do, and did, to such good purpose that, in
.1841, three years after being called, he is described
as one of the leaders of the Home Circuit with Shee,
Channell, and Lush, rising men being Honyman,
Bovill, Frederick Thesiger, Mathew, Parry, and
Hawkins (Piatt was made a Judge in 1845). The
motto he liked best to quote, and formally took in
later years, was ' Diligenter.' In order that a
detailed account of the work and career of a
barrister in good practice shall be interesting,
special talents are required — on the part of the
reader. It gives a poor and incomplete idea of the
enormous mental and physical strain Mr. Bramwell
went through between 1841 and 1856 to say how,
as a pleader on the Home Circuit, he was entrusted
with most important cases, on which depended the

18 A MEMOIR OF LORD BRAMWELL
fortunes of clients long since dead and gone. Rail
way construction and industrial expansion, due to
Free Trade, were causes at that epoch of much
commercial litigation. Mr. Bramwell profited by
the new business. Became a power with judges and
juries at the Guildhall. City solicitors believed in
him. Although so redoubtable a combatant, carrying
far too many guns for most of his opponents in
controversy, he had not the combative instinct — did
not love fighting for fighting's sake. In later years
his expressions of deference for some opponents, such
as Mr. George Potter, Mr. Shaw Lefevre, Henry
George, etc. — the evidence that their assertions did
tell on him a little — is almost aggravating at times.
Reasoning, or the product of balanced reasoning,
not victory, was the element in discussion which
attracted him. Perhaps that accounts for his suc
ceeding best as an advocate with special jurors.
The fine British imperviousness of common jury
men discouraged him, while he could not bring him
self to befool them nor to work on their prejudices.
Although never going quite the length of Roundell
Palmer, who refused briefs unless satisfied that they
embodied righteous claims, he was never comfort
able when he had a doubtful case in hand. An old
friend and colleague in the House of Lords  still
hale, hearty, and full of fight— once asked him :
' How is it that such a clever fellow as  doesn't
get on in the profession ?' 'He is too much of a
gentleman to get on at the Bar,' answered Lord
Bramwell, which in view of the high consideration

LOPPING WITHERED BRANCHES 19
he himself had from the Bar sounds almost un
grateful ; but it meant that shabby, ungentlemanly,
half-honourable things were done now and then by
men in haste to get on.
In 1850 he was made a member of the Common
Law Procedure Commission, the other Commis
sioners, all unpaid, being Lord Chief Justice Sir
John Jervis, Sir A. Cockburn, Baron Martin, and Mr.
Willes. The foremost men in the profession had
learnt already that Mr. Bramwell, while thoroughly
loyal to English law, was neither a pedant nor an
obstructive. No one felt more strongly than the
Mr. Bramwell of 1850 that the time had come to
refit the ship, alter the rigging, adapt the steering
gear to changed conditions, to the latest needs of
legal navigation. A school of Judges and practi
tioners had come to imagine that suitors were
created for procedure, not procedure for suitors.
Kingly, and all other, threats to English liberty
having seemingly disappeared, scant justification re
mained for legal shibboleths and forms of exorcism,
the origin and meaning of which were forgotten.
The ancient masters of English Common Law had
recognized for centuries a double function, a double
duty cast upon them. Besides deciding and en
forcing individual claims of right as between suitors,
they had also to defend at need popular liberties
against the aggression of extra-judicial ' authority,'
armed with prerogative or the power of the sword.
Thus, at important epochs in the history of English
liberty, the best weapons the Judges and pleaders,
permanently on frontier service, had — wherewith
2 — 2

20 A MEMOIR OF LORD BRAMWELL
to fight the Church, the Barons, or the King —
were precedent, legal fiction, technicalities, gray old
bogies which impressed and frightened oppressors
of a certain kind, just as relics, incantations, fetiches
frighten ignorant savages.*
The school of jurists which was already passing
away in 1856, represented by Thurlow, Eldon,
Stowell, Sidmouth, on the Chancery side, by Parke,
Rolfe, Holroyd, on the Common Law side, did not
explain, possibly did not understand, the origin
and justification of that juridical Conservatism, that
' opposition to historical requirements,' with which
they have been reproached. Charles Dickens, the
inspired prophet of the obvious, and his imitators,
have made plenty of grim fun of Chancery pro
cedure especially. Nothing was easier. All legal
wisdom and 'logic of law' (p. 353) do not date
from the Common Law Procedure Act of 1852, or
the Judicature Acts of 1874 and 1876, any more
than all sound economic legislation dates from the
repeal of the Corn Laws. Joseph was a sound
economist when setting up State granaries in Egypt,
and Edmund Burke was sound, too, when telling
Pitt (and the Indian Famine Relief officers of later
times in deciding) that under modern conditions
Government granaries are a mistake.
* Hakewill's argument in Bates' case is crammed with ap
parently puerile subtleties, special pleaders' sophistries, which,
however, served— as when arguing that the King had indeed
a general right at Common Law to demand benevolences from
a subject, but that Parliament alone could say how much the
benevolence should amount to ; thus, the King had a Common
Law claim to x shillings, but not to one shilling. See p. 92.

HIS WORTH RECOGNIZED 21
In the United States, where (as American jurists
foresaw) the Supreme Court has always been en
barbette, always on the defensive against popular
passion or executive aggression, ' the Common
Law of England,' which the framers of the American
Constitution annexed en bloc, is more esteemed,
legal formalities and technicalities are more scrupu
lously maintained, ' case law ' has now far more
weight than in this country. In Lord Bramwell's
latter years, when ' the New Toryism ' and ' some
kind of Socialism ' seemed to him to threaten a
tyranny as pernicious as any that Pym, Burke,
Erskine, Brougham, or Romilly had fought against,
he, too, fell back upon the entrenchments of the
Common Law.
In 185 1, after thirteen years of exceedingly hard
work as a stuff gownsman, he was made a Q.C. In
that year, says a notice of his career by Master
Macdonell, he earned .£3,414 in fees ; in 1852,
£4,549. During his last year at the Bar, when
acknowledged leader on the Home Circuit, his fees
were nearly .£8,000. He only once held a brief in
a criminal case.
On April 26, 1853, Lord Cranworth, Chancellor
in Lord Derby's Government, asked him to serve
on a Royal Commission of Inquiry into (1) assimi
lation of Mercantile Laws of Scotland and England ;
(2) Partnership Laws, and unlimited liability of
Partners, adding, ' I shall consider your services of
most essential importance.' These Commissioners
were to be paid. From this inquiry came the
Companies Act, 1862 (see p. 329). In January,

22 A MEMOIR OF LORD BRAMWELL
1856, James Parke, Baron of the Exchequer, after
wards Lord Wensleydale, who had sat on the Bench
for twenty-eight years, resigned. The number of
Barons was raised from four to five. Partly to
reward his services on the two Royal Commissions
named, but chiefly to comply with the general wish
of the legal profession (and the behest of the Times),
Lord Cranworth offered the vacant judgeship to
Mr. Bramwell, then forty-seven years of age.

[23 ]

CHAPTER II.
JUDGE.
Letters from Baron Parke and from American jurists — Interest
taken by latter in English procedure — Notable trials before
Baron Bramwell — Charge in Regina v. Druitt — Sir William
Erie's opinion — Three generations of mastiffs — Letters and
counsel from Chief Baron Pollock — Unsettled problems — ¦
Murder and manslaughter — Unwelcome duty thrown on
Judges by Parliamentary Elections Act, 1868 — The official
Liberal view — 'The Object of the English Criminal Law'
— ' Riel's Case ' — ' Passive Obedience ' — ' Criminal Appeals '
— Letters on Geneva Arbitration and indirect claims —
Advice to railway men — Takes the part of Judge — Musical
joys and sorrows — Quality of Lord Bramwell's humour —
Examples — ' Serjeants' Inn ' correspondence — Estimate of
Sir George Bramwell by public, press, jurymen, and Bar
— How arrived at — Signal honour paid to him by Bench
and Bar on his retirement in 1881 — Raised to the House
of Lords — Despatch from Lord Esher.
Baron Parke wrote to him from Ampthill,
January 9, 1856 :
' I rejoice much to hear from the Chancellor that you are to
supply my place in the Exchequer ; no appointment could be
better, and it will be highly satisfactory to the public'
Plain words and true, showing insight also, for
there was little in common between these two

24 A MEMOIR OF LORD BRAMWELL
masters, save strong sense of the dread responsi
bilities of their office ; and in after-years Lord
Bramwell, having so firm and confident a grasp of
the weapons of English law, showed that he could
take liberties which Baron Parke had always shrunk
from, always remaining, for that reason, bound, in
a sense, to the letter of law — the crutch of the man
not sure of himself. Besides, it is not safe to say
that a well -employed barrister will make a good
Judge : Scarlett, unmatched as an advocate, made
an indifferent one. The inimitable Sir Richard
Bethell did not make a ' good ' Chancellor. Sir
Alexander Cockburn's judgments are seldom quoted
nowadays. The morning Lord Blackburn was
raised to the Bench the Times asked in a leader
'Who is Mr. Blackburn?' and, December, 1859,
Chief Baron Pollock wrote to Sir G. Bramwell :
' What accounts do you hear of the dark horse Colin,
who lately won the race and astonished the natives ? I
expect he will turn out to be " a clever hack " and a " good
roadster." '
Among the numerous congratulations to the new
Baron at that time from Judges, Q.C.'s, barristers,
and solicitors, are the following letters from eminent
lawyers in the United States, men free from the bias
of comradeship, with no future professional interests
or convenience to care for. In respect to juris
prudence and constitutional law the opinion of
American lawyers of the first rank is always worth
having.* Mr. Charles Curtis, of Boston, is, curiously
* See post, p. 193.

ADMIRERS BEYOND SEA 25
enough, almost the only writer who, in congratulating
Baron Bramwell, immediately gave him his correct
title, noting also the constitutional anomaly involved
in Lord Wensleydale's ' life ' peerage. When made
Lord Justice of Appeal, Sir George Bramwell had
to ask Lord Coleridge whether he was in future to
be called M. or N., and what clothes he ought to
wear. Lord Coleridge replied :
' Heaths Court, Ottery St. Mary,
' October 18, 1874.
' . . . I take it, when you are transferred, you will be known
as Sir George Bramwell, simpliciter. I was told that was the
proper way to speak of Baggallay, and you are now exactly in
the same position that he is. Keep the scarlet gown for high
days and holy days. It is handsome ; a very old and historical
piece of drapery ; knits us on to the past ; surely a bond to
cling to if we can, without folly or prejudice, do so.'
Mr. Curtis wrote : ' Boston,
'February 18, 1856.
' My dear Baron,
' It is a high honour to sit as a Judge of either of your
three Courts ; but to be selected to fill the place vacated by
such a magistrate as Baron Parke is a great addition to the
distinction. We in the United States look on him as one of
the most eminent jurists England has had the good fortune to
possess. His judgments are of great weight, and are cited
with deference by our most enlightened Judges. Does it ever
come into your way to look into American Reports ? Those
of the Supreme Court of the United States, and those of the
Supreme Judicial Court of Massachusetts, will satisfy you that
we have made honourable progress in the science of juris
prudence, especially in Commercial Law. You may smile at
the vanity which I exhibit when I venture to say that I think
the Chief Justice of Massachusetts, Mr. Shaw, is the most

26 A MEMOIR OF LORD BRAMWELL

accomplished commercial lawyer living. During a practice of
forty years, it has been my duty to acquaint myself with the
Reports of the cases decided in your Courts, both ancient and
modern ; and I honestly believe that if Chief Justice Shaw
had had the same opportunity that Lord Mansfield had of
(almost) originating a system of law out of the indigesta moles,
which the Commercial Law was when he ascended and illus
trated the Bench, he would have performed the duty with as
much felicity as Mansfield. I saw the volumes of our Reports
in the library of Lincoln's Inn, and I see occasionally references
at your Bar to American cases. I had a letter from Sir James
Willes soon after his appointment, which gratified me as to
the evidence that he had not forgotten me.
' I observe that Baron Parke has accepted the title of Lord
Wensleydale. I am surprised that he should be willing to
sink the name of Mr. Baron Parke. It is said to be only for
his life. This I suppose to be an error. I have always sup
posed that a peerage must be an inheritable title, failing, to be
sure, if one die without heirs, but still, in its origin, never
granted (and I have thought not grantable) for life merely. . . .
' Charles P. Curtis.'*
* In contrast are some remarks from Chief Baron Pollock
on the Dred-Scott decision, in a letter of March 30, 1857, to
Sir George Bramwell, which show a very limited knowledge
of the subject referred to ; the ' anomalous power of abrogating
laws,' etc., being simply the equal and co-ordinate authority
of the United States Supreme Court — ' the linch-pin of the
American Constitution ':'... Notice has not been taken of
that remarkable decision of the Supreme Court of the United
States : " That it is of the essence of freedom that a man
should have the power of holding others in slavery. . . ." It
is an anomalous power to give to a Court of Justice — viz., that
of abrogating laws agreed to by Congress, Senate, and President
— on the ground that they are unconstitutional and inconsistent
with the fundamental principles of the Republic. The present
use of the power is more strange than the power itself. The
decision is in substance this : " That it is an infringement of a
man's natural liberty to prevent him from having a slave. . . ." '

THE LAST OF THE BARONS 27

Mr. Theodore Sidgwick wrote

' New York,
'February 16, 1856.

' Did you receive a letter from me, a magazine, a
barrel of apples ? Could neither my appeal to your sentiments,
personal, critical, or gastric, elicit any response ? I write these
few lines to say that I have sent you a magazine article on
your law reform (the C.L.P. Act of 1852), and also (much
more important) to express my satisfaction that you are on the
Bench. It is good for the lamp of legal science, and a fitting
reward of a laborious and successful career. . . .'

For the next twenty years Baron Bramwell sat on
the Exchequer Bench, 'Her Majesty's peculiar court,'
and he survived that august sanctuary which, thanks
to the usurpations of successive Barons, had remained
accessible to the King's subjects for the apocalyptic
number of 666 years. He also was one of those
who reformed it out of existence. In 1867, with
Mr. Justice Blackburn and Sir J. D. Coleridge, he
was made member of the Judicature Commission.
In 1876 he was made a Lord Justice of Appeal, and
administered the new Acts, fusing Law and Equity
for five years. That is the bald record of his service
on the Bench. Much wisdom spoken by him there,
with profit to the Queen's subjects, lies buried in the
Reports. The first reported case in which he took part as
Baron of the Exchequer was Cook v. Hopewell.
Famous trials before him were the painful libel
action of the Earl of Lzccan v. Smith, raising the
story of the Balaclava charge in 1854 ; the garrotting

28 A MEMOIR OF LORD BRAMWELL
cases in 1862, which made a profound impression
on the public mind, while the severe sentences
passed on the garrotters, especially by Baron
Channell,* made the same on them ; the famous
* On Baron Channell's retirement, Sir George Bramwell
thus wrote to him : 'January 7, 1873.
' Dear Old Friend,
' So you have left us. Schoolfellows more than half a
century back, friends at the Bar for twenty years, and brothers
on the Bench for sixteen, we now part close company. I don't
like it — I am sure you are right to leave. Your judgment and
heart are too good for you to be wrong. But ours is a very
old association to come to an end. I am satisfied I must be a
good fellow, or we should not have been such friends. I am
sure you can hardly remember a sharp word between us all
this time. I heartily hope you will enjoy yourself ; you have,
at least, everybody's good wishes. What the Times said of
you is what all think and say. So farewell for the present, as
I certainly mean to see you again. ' Yours ever,
' G. Bramwell.'
Dr. May's was not Lord Bramwell's first school. When
quite a little chap, he had been a day-boarder at Dr. Reddy's
at Camberwell, where the late Baron Channell, three years his
senior, was head-boy. Of Dr. Reddy, this only is recorded—
that he used to aver that it was he who first Jjmgrft Jowett
Greek. Baron Channell read for the law in Mr. Colmer's
chambers, and the two schoolfellows scarcely met again until
one day in the year 1839, when Mr. Channell held a brief in a
case at Maidstone Assizes. Consultation with the solicitors
revealed a technical flaw in the pleadings drawn by them,
which in those days would have proved absolutely fatal. The
solicitors could only hope that it would not be discovered.
' Who's against us ?' asked Channell.
' Oh,' was the reply, ' a Mr. Bramwell. Nobody ever heard
of him before.'

OLD LIBERTIES, NEW TYRANNIES 29
insurance case of Wooley v. Pole, in which a wealthy
half-caste gentleman, tenant of Campden House, was
alleged to have committed arson, and the resistance
to Wooley's claim was said to have seriously damaged
insurance companies' business ; the terrible case of
the five pirates of the Flowery Land, the last
convicts executed in public. August 21, 1867, he
presided at the Old Bailey at the trial of G. Druitt,
or Drewitt, M. Lawrence, and J. Adamson, officials
of an Operative Tailors' Protection Association,
indicted for carrying out ' picketing ' in an illegal
manner and with intimidation during an extensive
tailors' strike in the spring of the year. Outrages
committed by the Sawgrinders' Union at Sheffield
had infamous notoriety at the time. Mr. (now Sir
Harry) Poland and Mr. (afterwards Lord) Coleridge
defended the three prisoners. Five others, mostly
Irishmen, defended by Mr. Hardinge Giffard (now
Lord Halsbury) were acquitted. In charging the
jury, Baron Bramwell restated, in language which
should never be forgotten, the imperishable Common
Law rights of British subjects :
' The liberty of a man's mind and will to say how he shall
bestow himself and his means, his talents, and his industry, is
as much. a subject of the law's protection as is that of his body.
Generally speaking, the way in which people have endeavoured
to control the operation of the minds of men is by putting
' Then, gentlemen, we're done,' was the advocate's remark.
' I was at school with that gentleman.'
And done they were. It was Mr. Bramwell's first Assize.
In the year 1839 the leaders travelled by stage-coach. He
took the steamboat to Gravesend, and walked to Maidstone to
save coach fare.

30 A MEMOIR OF LORD BRAMWELL
restraints on their bodies, and therefore we have not so many
instances in which the liberty of the mind was vindicated as
was that of the body. Still, if any set of men agree among
themselves to coerce that liberty of mind and thought by com
pulsion and restraint, they are guilty of a criminal offence —
namely, that of conspiring against the liberty of mind and
freedom of will of those towards whom they so conducted
themselves. I am referring to coercion or compulsion — some
thing that is unpleasant and annoying to the mind operated
upon ; and I lay it down as clear and undoubted law that
if two or more persons agree that they will by such means
co-operate together against that liberty, they are guilty of an
indictable offence. The public has an interest in the way in
which a man disposes of his industry and his capital ; and if
two or more persons conspire by threats, intimidation, or
molestation to deter or influence him in the way in which he
should employ his industry, his talents, or his capital, they are
guilty of a criminal offence. That is the Common Law of the
land, and it has been, in my opinion, re-enacted by an Act of
Parliament passed in the sixth year of the reign of George IV.,
which provides in effect that any person who shall by threats,
intimidation, molestation, or any other way obstruct, force, or
endeavour to force, any journeyman to depart from his hiring,
or prevent any journeyman from hiring, shall be guilty of an
offence. That Act was passed forty-one years ago, and, by a
statute of 1859, it was enacted that no workman, merely by
reason of his endeavouring peaceably and in a reasonable
manner and without threat or intimidation, direct or indirect,
to persuade others from working or ceasing to work, should be
guilty of an offence under the former Act of Parliament. In
other words, the second Act said that should not be so if they
did what they did in a reasonable and peaceful manner for the
purposes of persuasion. ... I am of opinion that if picketing
is done in a way which excites no reasonable alarm, or does
not coerce or annoy those who are the subjects of it, it is no
offence in law. It is perfectly lawful to endeavour to persuade
persons who had not hitherto acted with them to do so, pro
vided that persuasion does not take the shape of compulsion or
coercion. . . .'

WISE WORDS TO PICKETERS 31
Druitt, Lawrence and Adamson on Tuesday, and
a fresh batch of picketers on Thursday, were found
guilty. When they came up for sentence, Friday,
August 23, Baron Bramwell, after consulting out of
Court with Alderman Lusk, made an appeal to the
prisoners in words which, in print, must always
convey, to a generation which no longer sees such
men as he, but a poor idea of his dignified manner,
sonorous voice, and commanding expression, when
speaking under strong emotion : ' . . . Now I ask
you in all kindness to listen to me. to listen to an
impartial man . . . because the only interest I can
have between you and your masters is that my
clothes will cost me a few shillings more or less,
which I do not consider will warp my judgment. . . .'
Then he went on to point out the unfairness, injus
tice, and tyranny of their proceedings. In the end
he dismissed the prisoners without passing any
sentence. A few days later, August 25, 1867, Sir William
Erie wrote on the matter :
' . . . That job was done in a workmanlike manner. I hope
it will do good, and am heartily glad you took the duty,
for your own credit and the sake of the country. ... In one
of Scott's novels is there not a Bradwardine with motto,
" Bewarr the Barr " ? I thought you and your dog as photo
graphed might take that motto for the picketers. . . .
' Bramshill, Liphook, Sunday.'
He alluded to it again from Bramshill, January 19,
1869 :
' All I want to know is, How goes it with your lordship
and your brave, sensible, faithful dog ? I hope you are hearty

32 A MEMOIR OF LORD BRAMWELL
and cheery. ... I have one comfort " great and glorious,"
as Maw- worm says, and that is, in seeing Willes's sagacity in
managing elections, as also in every other possible thing, duly
appreciated by the Times, and therefore by Her Majesty's
public in general. And now good-bye. I wish you health
and happiness for many years to come with which to be brave
and useful, as you were in if. v. Druitt and others, tailors'
strike, which we put verbatim into our Report as an exposition
of the existing law.'
The fate of the brave, faithful, sensible dog
mentioned is told in a letter to the late Mr. Robert
H anbury, of Poles, Herts : 'January 8, 1876.
' Dear Sir,
' I have received your letter about the Reformatory
and Refuge Union. I am afraid it is a lithograph, conse
quently a circular, which neither calls for an answer nor
justifies my writing. But I have as Judge known gentlemen
of your name as High Sheriffs in Berks and I think in your
county ; you may be one of them. So perhaps you have
written to me because you have known me, and perhaps I
may be warranted in writing to you. If not, forgive me.
Some years ago Mr. Blake, of Welwyn, gave me a most
beautiful mastiff, bred by a gentleman of your name. I got
very fond of him, and when he died of old age, to comfort me
I got another, not so handsome, but the gentlest, most affec
tionate creature possible. He got killed on the railway about
six weeks ago, to the great grief of myself and Lady Bramwell.
Now to the point. If you are the breeder of these beautiful
creatures, and will give or, if you are not will influence me, a
puppy I will subscribe a liberal sum to the Union. I very
much approve of it, and believe it does great good. In proof
of which I venture to hand to you a promise of a small
subscription. Pray excuse this : you would if you could tell
how we have sorrowed over that dog — though you might
think us very silly. ' Very truly yours,
' G. Bramwell.'

WHAT JUDGES THLNK ABOUT 33
The result being that he gave Mr. Edgar Hanbury
.£20 for a robust mastiff puppy, six weeks old. This
dog and Lord Bramwell also became great friends.
As a Judge, Baron Bramwell was always learning.
His intimate correspondence, lasting for ten or
twelve years, with Chief Baron Pollock, shows what
these two men were ever most concerned about.
February 20, 1859, Sir Frederick, who now and
then was perhaps a little too fond of discoursing on
Shakespeare and the musical glasses, says :
' - . . In writing to you I always feel as if I could write for
ever, and pour out my whole soul through the nib of my
pen. . . .'
These letters contain little about either man's
own pride, profit, or pleasure ; much about plans for
doing their duty in a better way, more wisely, more
mercifully. August 7, 1858, Chief Baron Pollock
writes :
' ... It must be remembered that a legal sentence is not a
punishment for moral sin (scarcely for legal guilt) ; its object
is to deter others with as small an amount of human suffering
as will answer that end.'
On August 8, 1857 :
' ... As to usury, I consider it in the same light as incest.
The law does not punish it ; but it is the duty of grave and
decent Judges to denounce it when they come across it. . . .'
1 Sunday, April 5, 1859.
"... Our circuit is glimmering in the socket. The Chief*
(for I am only the Junior Judge of Assize) is a singularly able,
clever man, but of rather undomestic habits. Have never
seen him at breakfast ; always had to wait for him at dinner.
* Lord Campbell.

34 A MEMOIR OF LORD BRAMWELL
He has (as I told him one day) a sublime contempt for the
immaterialities of life. In respect of ermine and gold chains,
trumpets and scarlet cloth, very much of the Martin school ;
likes to get through the rind of the orange and reach the pulp
as early as possible. . . .'
Again, July 20, i860:
' ... In a Post Office case, I rebelled and refused to give
penal servitude to a sorter and deliverer who had been eighteen
years in the Post Office, maintaining himself, a wife, and six
children with a pound a week, but became a victim to the
wicked practice of sending coin by the post. When Tenterden
found that somebody was always ready to swear to a " promise
to pay " a debt (barred by Statute of Limitations), he intro
duced a Bill requiring the promise to be in writing. When he
saw that a new kind of action had sprung up (for giving a
false character), which violated the spirit of the Statute of
Frauds, he required all such " characters " to be in writing. . . .
Why does not the Post Office lower the charge for Post Office
orders, and refuse to convey coin ? . . . What is a poor devil
to do with starving children, one or two of them sick, money in
his hand, nothing to protect it but the envelope ? It is too bad ;
it is scandalous ; it is disgraceful ; it is wicked. I declare war
against it. . . .' ' Tuesday, July 16, 1861.
' I know little (indeed, nothing) of the discomforts of a Welsh
circuit, and I don't mean to learn them. I know not whether
I am to condole with you on bad lodgings and stingy magis
trates, on drunken and stupid interpreters and incurably
obstinate and corrupt jurors, or whether I am to congratulate
you on tasting currouch da ! at the summit of Cader Idris.'
' March 22, 1863. '
' . . . Eighteen months for knocking out brains is not too
much; on the contrary, vastly too little. But you have en
deavoured to shift the question, which is, not whether the
punishment was, per se, too much or too little, but whether at
the end of ten years (and ten may be twenty as well as four) it

MURDER, METAPHYSICS, HOLIDAYS 35

is right to give the same punishment as would be given at
first— all Nature says No in a case of murder. Take Eugene
Aram's case, or Governor Wall's (assuming both to have been
guilty), you can still do nothing but hang— that is, if you do
anything. Governor Wall's case was, however, somewhat
questionable, and the Ministry would have spared him if they
could have mustered courage to do so, or could have found
any excuse for it. . . .' ' March 28, 1863.
' - . . I think physiologically you are quite right about
digestion. I should certainly take very bad care of your
digestion.* (I do not take very good care of my own.) But
to argue in favour of selfishness on this account is to confound
physics and metaphysics, morals and matter.' ' August 31, 1863.
' - . . You are making a prodigious fuss about the abridg
ment of the long vacation, as if " Bramwell's Abridgment "
was an extraordinary work. I remember being engaged at
Lancaster in a cause before Bailey in the month of September,
and my long vacation consisted of one day, which enabled me
to travel to London and attend Lord Tenterden's sittings (he
was then only Sir Charles Abbott) the following day. This
was before Scarlett's Bill passed which fixed the terms, secured
us a "long vacation" of decent and reasonable length, and
gave us a short vacation, commonly called Scarlett's holidays.
While the Chief Justice himself received much in fees for
business done, his clerk (I believe) a great deal more, and his
son (the associate) still more, he worked like a trooper. But
when he (and the son) were put on salaries, he was quite
content with the " inactivity " to which the statute condemned
him, by giving twenty-four days of sitting after each term and
no more, unless by consent. It is above thirty years since all
this happened, and you (young gentlemen) know little about
it. And as to your stay at Croydon, I was once three weeks
at Guildford myself. The malignant did indeed say that I
dawdled on to shirk the Old Bailey. But I sat every day as
* See p. 139, " Laissez Faire," pamphlet.
3—2

36 A MEMOIR OF LORD BRAMWELL
late as you do now. You are right ; it is as late as a Court
ought to sit when it sits " de die, in diem." '
'Monday, August 28, 1865.
' . . . What a pedant that doubting lawyer must be who at
once caused Charlotte Winsor to be respited. Was it Parke,
or Rolfe, and why did not the Chancellor* (feeble man !) ask
at once the personal opinion of the Judges, and act upon the
result ? There is no plea to raise the question on a writ of
Error. And no point was reserved for the Court of Criminal
Appeal, therefore there cannot be a true judicial inquiry ; the
proceeding must be extra-judicial. No doubt a Court may
discharge the jury, and in this case it is too late to inquire
whether it was done with perfect accuracy or not. Does the
blockhead mean to say that if it were now discovered that a
wrong man served on the jury, the prisoner ought not to be
executed ? In Frost's case nine of the Judges thought my
objection a good one (that the list of the jury and the copy of
the indictment ought to have been delivered "together,''
simultaneously), but nine thought the objection was taken too
late. Oh dear ! oh dear ! when will pedantry and folly
cease ? . . .'
' Committee business has attracted  to London, and he
has given up a Ni. Pri. brief here in a will case. Qua propter
they have withdrawn the record. He will get one or two
hundred guineas. His client will be put to the expense of five
or six hundred. I don't like the morale of this. . . . There
ought to be some power to notice and check or control such
things. If he had said, " I will not remain unless you give me
a further fee of 200 guineas," he would have been said to do a
very unprofessional thing. As it is, what has he done ? . . .
Worse than " not going to church," or than omitting in the
sentence of death a prayer for mercy on the soul of the
murderer. You are right in omitting it — I think so. I always
omit it myself. In truth, the introduction of it was an " in
trusion " Unless the sentence is certain to be carried into
effect — an event never certain, of which I don't complain — it
* Lord Westbury.

RE EFFIE DEANS 37
is, I think, wrong to utter such a prayer. I am not sure that
we are not now ripe for the abolition of the punishment of
death — even for murder.' ' September 3, 1865.
' . . . The papers have been making a great fuss about the
lenient sentences of Judges when women are convicted " of
concealing the birth by putting away the body." The fault is in the
Legislature, which made an imaginary crime, and wished to make
the Judges parties to the fraud of convicting the accused of one
thing and punishing her for another. I have no doubt the
Legislature meant the Judges to give a very severe sentence
when there had been foul play with the child, and a nominal
sentence almost when there was no suspicion of anything
wrong. But the Judges won't be parties to this kind of fraud
— one can call it nothing else. . . .
' , . . Why should not a woman who has occasioned the
death of her child by carelessness, negligence, some improper
conduct (not amounting to murder), be convicted of man
slaughter ? The State seems to take it for granted that she
must be convicted of murder or be acquitted. Is that so ?
And would not conviction of manslaughter be some remedy for
the evil ?'* ' October 13, 1865.
' . . . Practically I quite agree with you as to the imaginary
crime of concealing a birth. As a fact, it is consistent with
perfect innocence of anything, save want of chastity. It may also
be connected with, and arise out of, a foul and cruel murder.
All that the jury find is a fact consistent with perfect innocence,
or possibly with great crime ; then the Judge has to decide
which. I have a rooted aversion to punish prisoners for a crime
of which the jury have not found them guilty. You are quite
right ; I never did pass any such sentence as eighteen months'
or two years' imprisonment for concealing a birth. It should
be for the jury, not the Judge, to find that the child had not fair
play. Our law (it is one of its great defects) has only two
* See Voltaire, Commentaire sur les delits et les pemes, 1766;
developing the ideas of the Marchesi di Beccaria.

38 A MEMOIR OF LORD BRAMWELL
kinds of criminal slaying — imirder and manslattghter. You may
object to my analogy, that a Judge is bound to look into a case
of manslaughter and decide between a fine of one shilling or
penal servitude for life. But the jury there find criminal slaying.
Here they do not. Next time I have a case that admits of it,
I will leave to the jury to find a verdict of manslattghter. Why
not ? " The Court (Bramwell) I am not sure — I agree ; but
take a rule." . . .'
Much the same problem is touched on in a letter
from Mr. Robert Lowe, ex-Home Secretary, to
Baron Bramwell : ' 36, Lowndes Square.
'June 30, 1874.
' ... Of course we cannot define murder by reference to
manslaughter, and manslaughter by reference to murder. . . .
There must be a definition of those things which reduce murder
to manslaughter. Perhaps they need not be stated, but the
Act might refer to the Common Law. Fitzjames Stephen has
tried his hand, and has so managed that he limits manslaughter
to cases where there was no intention to kill, thus making all
killing under provocation murder.'
The Parliamentary Elections Act of 1868 (31 and
32 Vict., c. 125) made election petitions triable
' before a Puisne Judge ... at Westminster or in
Dublin.' Instinctively Sir Alexander Cockburn,
Baron Bramwell, and others of their colleagues,
saw, although they may not have fully explained
why, that the new work thrown on them was a dis
tortion of the true functions of the judiciary —
functions which Parliament either could not under
stand or did not care to preserve intact. Business
in the courts of law had increased with the growth
of the nation, was ever increasing. Behind the
obvious and unanswerable arguments for reform of

JUDGES AND ELECTLON PETITIONS 39
procedure which justified sundry legal changes (in
cluding, perhaps, the Judicature Acts) of subsequent
years, there was a growing ambition within the
House of Commons to stretch supervision and
direction by the Legislature to a point dangerous
to the authority of the judiciary. Maintenance of
justice and adjudication of individual claims of right
had too long been left to the Judges. Parliament
meant to look more minutely after ' social justice ' in
future. Although, technically, the Elections Act
seemed to widen the scope of judicial authority, it
was in the true spirit of English jurisprudence that
Chief Baron Sir F. Pollock protested, February 21,
1868, against the new policy. The growing in
difference of the public to the details of Parlia
mentary elections and the fate of candidates probably
accounts for the nonfulfilment of some of Sir F.
Pollock's prophecies. He underestimated, too, public
confidence in the perfect impartiality of the Bench.
* . . . 1st. I entirely approve of the Judges declining to do
the dirty work of the House of Commons. When parties were
allowed by consent to dispense with a jury, it was left to the
Judge to act upon that consent or not at his discretion. My rule
was not to dispense with the jury when the facts were really in
dispute. In the case of a contested election the facts alone are
in dispute ninety-nine times out of a hundred. Truth is to be
looked for (and not always to be got) in a mass of perjury and
corruption, which would defile the mind of a Judge — to look at.
Our business is with principles, not fact. Even in the court
business in Banco, if a difficult question of fact arose, it was
often (by an issue) referred to a jury. And there is good
reason for all this. A jury decide "aye" or "no," and give
no reasons. No ill-will arises. A Judge would have been
expected to do much more ; to give the result of his sifting of

40 A MEMOIR OF LORD BRAMWELL
the case in something like a deliberate judgment, raising a
storm of ill-will, slander, and misrepresentation against himself by
saying which of the witnesses he thought had been guilty of
perjury. It seems idle to talk of the authority of Parliament, or
that the Judges have despised it. No doubt Parliament might
take my estate from me and give it to you. But what would
be thought of a gentleman who asked an upper servant to take
care of his books and pictures, and then desired him to scour
the stairs, saying he was a servant and bound to do whatever
he was told. A dirty candlestick should not be wiped with a
cambric pocket-handkerchief — assez pour cela. . . .
' . . . Poor  died in the morning of the day when you
wrote. He was " an eloquent gentleman," an indifferent
lawyer, and a very bad Judge.'
Meantime, February 19, 1868, Mr. R. Lowe,
Chancellor of the Exchequer, in reply to Sir
George Bramwell's own remonstrances, put the
official Liberal view of that epoch, inspired to some
extent by Jacobin enmity to English juridical ideas
and by zeal for Parliamentary, official, or depart
mental ascendency — evil legacies to English
Liberalism from Bentham and Austin. The Judges,
Mr. Lowe hints, are superior Civil Servants, Govern
ment inspectors in wigs.
' . . . We have no right to overwork you, and I, at least,
would not be a party to any proposal which could be shown to
have that effect. Whether the advantages of having the work
done by you are overbalanced by the chance of soiling your
ermine, I will not argue. You are not " the judges " of it. It
is the duty of Parliament (not the House of Commons) to hear
with respect what you say, and then decide. Before you the
question is, I think, coram non judice, invincible repugnance
notwithstanding. As to our having no moral right to impose
the duty on you, I should agree, if it were not ejusdem generis
with the duties you perform already. You find issues of fact

' MANLA ' AS AN EXCUSE 41
at Nisi Prius ; in matters of practice your main business is to
apply law to fact ; I entirely decline so to circumscribe the
power of Parliament as to admit that we ought not to require
you to deal with other facts or other laws. A much stronger
case was the jurisdiction given to the Court of Common Pleas
about railways ; equally strong the appeal from revising
barristers. You don't like the job because it is full of anger
and discord. My butler might just as reasonably object to
carry the urn because it is hot. I write in a hurry, and
with some lack of gravity, but I really cannot admit your
arguments. . . .'
On January 12, 1872, the Rev. John Selby
Watson, an eminent scholar, was sentenced by Mr.
Justice Byles to death (commuted to penal servitude
for life) for killing his wife in a fit of passion. At
Bow Street one of the prisoner's quotations had
been : ' Saepe olim semper debere nocuit debitori.'
Mr. Robert Lowe, it is related, divided the Cabinet
on the question whether this was good or bad Latin.
The majority said good. Christina Edmunds, sen
tenced to death, January 16, for poisoning children
at Brighton, was reprieved on grounds of insanity.
On February 3, 1872, the Baron wrote to the
Spectator :
' The Object of the English Criminal Law.
' The two recent trials of Watson and Edmunds have shown
the uncertainty and contradiction of opinions on the subject of
how far insanity should exempt one who breaks the criminal
law from its penalties. The following is an attempt to ascer
tain the principle :
' Whom should the law punish ? It is obvious that it should
punish all whom it threatens, who knowingly break it, and are
convicted thereof. To threaten punishment and not punish
would be idle. To say that stealing should be punished with

42 A MEMOIR OF LORD BRAMWELL
three months' imprisonment, arson with eight years' penal
servitude, and murder with death, but on conviction not to
pass or enforce those sentences, would be nugatory. The
question, then, first is, Whom should the law threaten ? It
seems an obvious answer to say : All on whose minds it may
operate, all whom it may deter by its threat. It would be use
less to threaten those who could not understand the threat. It
would be useless to threaten punishment to an idiot for dis
obeying the law, doing wrong, or injuring another, if the
intellect of that idiot was such that it did not understand the
meaning of disobedience of the law, doing wrong, and injuring
another. So if a man laboured under a delusion that someone
was attempting his life, and believed that facts existed which,
if they really existed, would justify his taking that other's life,
it would be useless to threaten him. He would say, " I have
obeyed your law," and he would have meant to obey it. His
mistake would be no reason for punishing him as for wilful
breach of a law. It is so in the case of a sane person. If a
man shoots another in the apparent act of committing burglary,
the shooter is not punishable, though it turns out he was mis
taken in supposing burglary was being committed.
' The law, then, should threaten, and consequently punish,
those on whose minds it may operate, all whom it may deter.
This is the law of England at present as laid down by the
Judges in their answers to questions put to them by the House
of Lords in McNaghten's case. Should there be any excep
tion to this rule ? . . .
' Let us examine the supposed exemption of an offender of
unsound mind. It is said mad people ought not to be punished.
If not, they ought not to be threatened. But why ought they
not to be threatened if the threat may operate on their minds,
if it may deter them ? It is said that there are certain manias
which irresistibly impel to crime, and that though the threat
of the law is understood, there is no wilful disobedience of it.
Now, what are these manias ? The two most frequently heard
of in connection with crime are the homicidal mania and the
stealing, or kleptomania. A man troubled with these has a
strong desire to kill and to steal. These manias, as they are

THE ANTIDOTE TO ' MANIA 43
called, do not consist in disease, unsoundness, or a non-sane
state of the mind, but of the passions or appetites. The
homicidal maniac has a morbid craving for taking life. The
not doing so is painful to him, the doing so pleasurable. We
may wonder that it should be so, but so it is. Not a natural
appetite, or source of pain or pleasure, it is so in this man.
So of the kleptomaniac. He likes to take from others the
property that belongs to them, and have it in his own posses
sion. . . . There are other cases of " mania," supposing that to
be the right word. About ten or twelve years ago a man was
tried and sentenced at Monmouth under the following circum
stances : He was a collier in the employ of the Ebbw Vale
Company. Their manager gave him the very best character.
He was their best workman, sober, honest, and a deacon at
his chapel. But he had this mania : he used to lie in wait on
a mountain where a footpath crossed from one valley to another,
and then outrage women with circumstances of atrocious
cruelty. There were nineteen indictments against him, and
many other cases where the sufferers would not come forward.
He was convicted on four, and sentenced to penal servitude
for life. Why was not this a case of mania ? We read in the
papers a few days ago of a boy in London, of about fifteen
years of age, whose delight was to fracture the skulls of small
children. He had done it on several occasions. That was his
mania. Now the mad- doctors call these cases cases of moral
insanity. But would it not be more correct to call them cases
of insane morality ; i.e., axe they not cases where the desire to
do mischief is not counteracted by a morality sound enough
to prevent commission of the offences they lead to ? Why
should the persons who commit offences under the influence
of their vicious desires or appetites — or " manias," if that is the
right word — not be punished, i.e., not be threatened with punish
ment ? It is said by the mad-doctors and their followers that
they, the persons breaking the law under such influences, do
not break it wilfully— that they can't help it. " See," it is
said ; " what is the use of your threat of punishment on this
man ? He has disregarded it under an irresistible impulse."
' He has disregarded it, no doubt, and the impulse or tempta-

44 A MEMOIR OF LORD BRAMWELL
tion was too great for the countervailing considerations. The
same argument might be used in the case of all offenders, how
ever sane ; the temptation has been too great for them. But
the justification of punishment, the reason for the threat of
punishment, is not to be found in its effect on those whom it
does not deter, but on those whom it does. Watson was not
deterred from killing his wife in a most barbarous way by the
law's threat that he would be hanged if he did, but are there
not many who are ? Is there no husband who would like to
knock his wife's brains out, but is deterred by knowing what
the law says shall happen if he is convicted of doing so ?
Another way the argument is put is this : " Poor fellow ! his
case is a hard one ; he did not have an equal chance with his
fellow-creatures. He knew he was doing wrong ; but, then,
his intelligence was small, his power of self-control was small,
his propensities maniacally vicious, so he is not responsible.
To the question, Is such a person as hateful as a person of
strong mind and no morbid appetite who deliberately did
wrong for his own profit or gain ? the answer would readily
be, No. But that is not the question. The question is,
Should the law not direct its threat against one who stands
so much in need of it, who, unless fortified by it, is so likely
to do wrong ? What would be thought of the law if it should
say in so many words : " You have a strong propensity to kill,
therefore if you do you shall not be punished; you have a
strong propensity to steal, therefore if you do you shall not be
punished ; and, further, if you, the homicidal maniac, steal,
you shall not be punished, because your mind must be feeble.
So of you, the kleptomaniac, you may commit robbery with
impunity — in short, both of you, having evil propensities, may
commit any offence without punishment " ? What would be
said of a father who should say to his sons: "You, John, are
a good boy, but if you rob an orchard in my absence I will
flog you ; you, Thomas, are a badly-disposed boy, who, when
my back is turned, will certainly steal my neighbours' apples
if you can, therefore I will not punish you " ? And where
this argument to stop ? I have a homicidal mania, therefore
do not punish me for homicide or other offences ; I have a

VALUE OF THE LAW'S 'THREAT' 45

kleptomania, therefore do not punish me ; I, says the Mon
mouth offender, have a peculiar physical or mental develop
ment, therefore do not punish me ; I, says a fourth, am really
not a bad man, but have lived all my life among thieves, and
am as much inclined to steal as a kleptomaniac ; I, says a
fifth, am really a good and well-conducted person, but I was
in great want, there was no witness near, the owner was rich,
so the temptation to steal the watch was irresistible. Irre
sistible ! All we know is that the deterring considerations
were not enough. Had a policeman been present when Watson
slew his wife, would his temptation have been irresistible ?
Would Edmunds have given the poisoned sweets to be taken
to the confectioner if a policeman had been within hearing ?
The argument comes to this : Wherever a person is likely,
from feeble intelligence or morbid appetite, to commit a crime,
wherever the threat of the law is most needed, there the person
is to be pitied, and the threat withheld. Why not in every
case where the offender is to be pitied ?
' It may be said the man ought to be punished, but not so
severely as the man of strong mind. Why, the question is,
What punishment ought to be threatened ? Give what is
threatened — all or none. Take the two cases I have referred
to. Watson's was a most savage, furious murder ; not one,
but many blows must have been given. Do not furious
passions require repression ? The other was a most cruel,
deliberate murder, undertaken to screen the offender from
suspicion of having tried to murder a woman for whose
husband she had an adulterous affection. If her insanity
tended to this, would it not have been a good thing that she
should have had constantly ringing in her ears " The gallows" ?
Our criminal law is in a curious state. Watson is found
guilty, and, as everybody agrees, properly, according to the
law as it exists. One of the Judges is said to have expressed
an opinion that he ought not to be executed. This seems
odd. Let us suggest that the Judges at large vote on such a
question. I should think if they had it would have gone hard
with that savage murderer. So as to Edmunds, the jury say,
and everybody is satisfied, that she is not within the rule the

46 A MEMOIR OF LORD BRAMWELL
law lays down excepting offenders from punishment on the
ground of insanity. It is said that the Judge who tried her
doubts if she is not insane, more or less, and Sir W. Gull says
she is. What if she is ? Her insanity is not the question,
but her knowledge that she was doing wrong. Let us not
blame the Home Secretary, one of the ablest we have had for
many years, and of whose duties none is so difficult as that
of advising or withholding mercy. The cases are curious.
Watson is " the Rev. Mr. Watson," " Mr. Watson the clergy
man," "the venerable-looking prisoner," and so a factitious
pity is got up for him in some. As you say, is it clear the
same sympathy would have been felt if Mick Connor had
knocked his wife's brains out with his pick-axe ? And so of
Miss Edmunds. Is it certain that no pity was felt for the
lady whose relations were so respectable, though of doubt
ful intellect ? These are, as you say, cases that make one
wonder if an unconscious feeling for respectable people has not
influenced the exertions to save these two most grievous
offenders. ' While on this subject, attention may be called to a strange
state of the law. Some years ago a commission recommended
that unpremeditated murder should not be punished capitally.
The report was of such a character (to say no worse of it) that
legislation did not follow on it, but the Home Office acts on
that recommendation, so that, pro tanto, it has repealed the
law as to murder.
' The present state of things is most unsatisfactory. If the
Home Secretary is not strong enough to deal with these ques
tions (and none is more capable than the present), let some
tribunal be constituted which can. At present it is chaos. 'Ex.'
A Times letter of October 28, 1885, applies equally
stern reasoning to the case of Louis Riel :
' " There is a general expression of editorial opinion," in the
United States, that " Riel ought not to be hung." I am of a
very different opinion. No man needs severe punishment so
much as a defeated patriot who has risen in rebellion against

POLLTICAL OFFENDERS' 47

the State. In ordinary cases of crime disgrace is the conse
quence of conviction. If a man picks a pocket or steals a
sheep, besides the law's punishment, he loses character. But
see the case of the rebel. If he succeeds he becomes an
emperor, or president, or other distinguished and well-paid
personage. If he fails, he has all the honours of patriotism,
and if punished of martyrdom — " much sympathy " is felt with
him. Then, consider the offence. It is not one murder, rape,
arson, wounding, plunder, but many. I say therefore that the
rebel in general needs heavy punishment. But Riel in par
ticular is a very bad rebel. He offered not to rebel if a few
thousand dollars were paid to him. He rebelled for gain.
Further, this is the second time. He has done it before and
been forgiven. Then there is a talk about his insanity. This
was carefully considered by the Court in Canada, and held to
be unfounded. He has done more mischief than a score of
murderers, burglars, and other criminals.
' Bramwell.'
In December, 1887, he wrote to Jus, an Indi
vidualist journal, since discontinued, almost repeating
what P. B. Shelley says in ' Declaration of Rights :'
' No man has a right to disturb the public peace
by personally resisting the execution of a law, how
ever bad. He ought to acquiesce, using at the same
time the utmost powers of his reason to promote its
repeal.' The influence of Godwin (the first of
Radical Unionists) and of Bentham is recognizable
in both passages. ' Passive Obedience.
' In Jus of November 18 appeared a paragraph to which I
respectfully object. I regret to see it in a publication entitled
to authority from its two qualities of ability and honesty. You
say, speaking of children being forcibly vaccinated, " If the
German vaccination law were the law in England, we should
censure the administrator who shrank from enforcing it to the

48 A MEMOIR OF LORD BRAMWELL
letter. But we should censure far more severely the craven
cur who submitted to such a law. In our opinion it would be
the duty of the administrators of the law to carry it out, and
the duty of the citizen to shoot the scoundrel who attempted to
perpetrate the outrage."
' How can this be ? How can a man be a scoundrel for
doing his duty ? How can it be the duty of any man to shoot
him for so doing ? Please to remember that you do not
strengthen your case by calling names. I should be the
craven cur you speak of. I should think it my duty to obey
the law or leave the country where it existed. The sovereign
power honestly and for the good of the community enact a law.
Surely it is the duty of the citizen or subject to obey it. Why
may not every man disobey any law he disapproves of, if you
are right ? There are plenty of conscientious crimes ; but we
punish them of necessity. ' Yours, etc.,
' Bramwell.'
The editor appended a note, in which the familiar
arguments for the 'sacred right of rebellion,' the
other side of this unsolved problem, were ably and
ingeniously put.
On April 7, 1883, he thus, in the Economist,
exposed fallacies which crop up whenever a ' great '
murder case looms large in the newspapers :
' Criminal Appeals.
' The Bill introduced by the Attorney-General on Monday,
to allow an appeal' to prisoners convicted of capital offences,
involves a very great change in English procedure, nothing less
than a second trial in all grave criminal cases, for it is absurd
to suppose that the appeal can long be confined to capital
charges. Prima facie its effect must be injurious. The con
fidence of the community in the method of trying criminals,
now quite perfect, must be weakened ; for the public, which
judges roughly, will perceive that the courts are not trusted
either by Government or Parliament ; will not see why, if the

COURT OF CRLMINAL APPEAL 49

first tribunal can go gravely wrong, the second cannot go
wrong also. Popular belief in justice, which is quite as im
portant as justice itself, will be impaired, and will not again be
strengthened, for the marvellous care now displayed in a
capital case is certain to be relaxed. The jury will feel that
the ultimate responsibility is not on them ; counsel will be
much more careless in sifting evidence ; above all, witnesses,
already heavily punished by the cruel treatment meted out to
them, will be twice as reluctant to come forward. They will
be kept from their duties and their avocations for weeks on end.
Moreover, popular fear of justice — which is next to popular
confidence in justice in importance — will be greatly weakened.
Proceedings will be so long, so confused, and so uncertain,
owing to the great pressure of opinion which will weigh upon
the Appellate Court as it now weighs upon the Home Secretary,
that the whole dramatic effect of punishment, in which much
of its deterrent power consists, will be lost. Intending criminals
will argue that, after all, they have only to run a limited amount
of risk, and will have many chances in their favour. That is a
most dangerous consequence of the change. Experience shows
that while criminals, especially habitual criminals, are daunted
by very light punishments, if certain, they will face any punish
ment, however terrible, even the gallows itself, if there is a
visible proportion of chances in their favour. The penalty of
death never deterred sheep-stealers, because there was always
the chance that juries would be induced by humanity to acquit ;
they are deterred by the present light punishment, because it is
nearly certain to be inflicted. The criminal's impression as to
chances, and not the chances themselves, is to be considered.
The criminal's impression will be that he is to have two trials,
in one of which he may escape ; while escape in either means
immunity. Terror of the law will be lessened. What with
public lenity, dislike to executions, and the increasing clever
ness of criminals, it has already been diminished to the farthest
limits of expediency. Far-seeing Judges, like Sir Fitzjames
Stephen, are asking for greater rigour.
' Such a change should only be made for one of three reasons
— to simplify procedure, to secure justice more perfectly, or to
4

50 A MEMOIR OF LORD BRAMWELL
protect the innocent. None of these ends will be attained.
Procedure will be far more complicated than at present, for
there will be two trials, two sets of expenses, and a double
burden laid upon all witnesses. The dread of commencing a
prosecution which constantly — e.g., in poisoning cases — shields
the wrong-doer will be grievously, and justly, increased. Delays,
always the opprobrium of English justice, will be indefinitely
multiplied. The Attorney - General hinted that the appeal
would always be heard during the three weeks now allowed
the prisoner to prepare for death ; but papers, lawyers, and
witnesses must all be brought from distant places to London ;
Judges are often immersed in other business ; postponement
will be the first object of the criminal's counsel ; the country
will be fortunate if three months is ordinarily found sufficient.
As for justice, that is not even the object of the Bill. The
main cause of injustice all over the United Kingdom is the
readiness of juries to acquit, in defiance of the law. So
injurious is prejudice in favour of the accused, that in England
it is next to impossible to obtain a verdict against a woman
accused of infanticide. In Ireland, in times of excitement,
persons accused of murder, treason, or outrage threatening life
invariably escape. If the Crown were allowed in such cases to
appeal to a superior Court, sitting without juries, the chances
of justice being done would be greatly increased. No such
appeal is allowed. No effort is made to secure conviction
when the law has been defeated ; every effort is made to secure
the criminal, when, after infinite trouble, justice is at last to be
done upon him. The Bill is entirely one-sided. The claim of
the victim, say of a dynamite outrage, which ought to be as
strong as the claim of the murderer, is entirely overlooked.
Finally, the protection of the innocent is not increased. Sir
Henry James says it will be increased because miscarriages of
justice do occur ; men are convicted through the prejudice or
ignorance of juries. Sir William Harcourt alone, in his two
years of office, has been compelled to pardon twelve men
regularly convicted. Granting that they are rightly pardoned
(which is by no means certain), what does that prove, except
that the Home Office is a very competent and lenient tribunal,

HOME OFFICE THE BEST APPEAL COURT 51
which ought not to be superseded, as it practically would be, by
any Court of Appeal ? It stands to reason that such should be
the fact. The Home Office is constantly, in capital cases,
placed in possession of facts, from irregular confessions, which,
if examined in Court, would be retracted, from the statements
of wives, which cannot be heard at the trial, and from the
prisoner's own evidence, which is inadmissible in court, that
enable the skilled officials of the department to reach nearer
the actual truth than the public tribunal has done. Sir
W. Harcourt is helped, not impeded, by his " anomalous "
position as an unrecognized Judge, by his ability to hear any
thing, by the secrecy he can enforce, by his freedom from the
fear of setting dangerous precedents ; and, aided as he is by
the careful trial below, by the Judge's notes, and by the
absence of counsel's eloquence, he becomes much more
efficient than any jury. It would be an injury to the innocent
to limit his powers, and they will be seriously limited by the
new Court of Appeal. He will never like to upset its decisions
without giving his reasons ; that may often be impossible, or
contrary to the public interest. He will be strongly tempted
to examine the case with insufficient care ; the accused has had
a fair public trial and an appeal, and why, the Home Secretary
will think, should he interfere ? If he does not interfere Parlia
ment can say nothing. Besides, he can hardly even begin to
examine the case until the Appellate Court has heard it, and
then either the remaining time will be reduced to hours, or the
Home Secretary will be obliged to grant those postponements,
which, even if they are not inhuman — and we must recollect
the prisoner approves them — diminish the most useful effect of
the law, the awe created by a just sentence. They stir up a
feeling of pity for the prisoner, which destroys the sense of the
justice of the verdict, and will, in the end, help a false public
sentiment to render capital sentences impossible. That, indeed,
is probably one object of the change, and it is a bad object, the
law being already weakened by various causes until the only
grand protection of life is the certainty that the wilful murderer
will hang. Death frightens a man like Carey the informer,
who would face calmly any sentence of imprisonment, with its
chances of subsequent pardon, rescue, or escape.'
4—2

52 A MEMOLR OF LORD BRAMWELL
In 1867 he had been member of the Neutrality
Laws Commission, in 1868 of the Naturalization
Laws Commission. This to the third Lord Ten-
terden, then Permanent Under-Secretary of State
for Foreign Affairs, and Lord Granville's reply,
bring out some of the divergencies between law, as
Lord Bramwell understood it, and that myth ' Inter
national Law ' : ' Bodmin, ' March 21, 1872.
' There seems to me to be a way out of the Alabama
difficulty, not only consistent with our honour and interest,
but necessary, and one which must be taken. . . .
' . . . Let us protest that the arbitrators have no jurisdiction
in the matter of indirect damages or claims, and under that
protest attend the arbitration. It seems to me we must attend
in any case. Let us see what would be the position of parties
subject to our laws. A and B refer matters to arbitration.
On attending before the arbitrators, A prefers a claim which
B says is not within the submission and over which the arbi
trators have no jurisdiction ; moreover, he says it is not a
valid claim. The arbitrators must entertain it, and either hold
it to be, or not to be, within their jurisdiction ; if they hold it
to be within their jurisdiction, they must adjudicate it to be
well or ill founded. Now, their jurisdiction is in no way
affected by B's non-attendance. He had a right to attend.
He may give up, or refuse to exercise that right, but the
jurisdiction of the arbitrators is not affected by his doing so.
The arbitrators then will award :
' First, that they have no jurisdiction over this matter.
' Or, secondly, that they have, and that the claim is ill-
founded. ' Or, thirdly, that they have, and that the claim is well founded.
' In all of the three events they will adjudicate on the other
claims quoted. In the first case, if the submission was con
ditional, with an ita quoad, that the award should be on all
matters referred, A, and perhaps B, might contest the validity

GENEVA ARBITRATION 53
of the award. In the second case, it would be binding on both
parties. In the third case, B might contest its validity quoad
the disputed claim, but would be bound by the rest of the
award, unless the matters were so mixed up as not to be
separable. ' How does the present case differ from this ? True, we
have notice before attending the arbitration that the claim will
be made ; but that in no way affects the arbitrator's juris
diction. Suppose we don't attend, suppose the Americans do ;
suppose the arbitrators decide, re indirect claims, in our favour,
but in consequence of our non-attendance, and not putting our
case before them, award ^"10,000,000 for direct claims, how can
we refuse to pay it ?
' It will be said that by attending we acknowledge the juris
diction of the arbitrators over these indirect claims. Not so.
If there were nothing but these claims in dispute, there might
be some ground for such a contention. But there are other
matters, in respect to which we must attend. If, then, we
must attend, we must. What we should be careful to do is
to attend under such a protest as shall show we do not admit
the arbitrators' jurisdiction over indirect claims. Now for the
result. The arbitrators say :
' First, they have no jurisdiction over indirect claims.
' Or, secondly, they have, and award in our favour.
' Or, thirdly, they have, and award against us, say,
^"200, 000,000.
' In the first two cases we are content. The third would be
awkward. But, in the first place, it will not happen ; nobody,
not even Sumner, expects or fears it. Secondly, it is more
likely to happen if we do not attend than if we do. If it
should be said that by our attending we recognize jurisdiction,
the answer is the one I have given, viz., that we must attend
for other matters. Thirdly, if such an award was made
against us, we must refuse to pay on the ground we now take,
viz., that we are not liable.
' This may be said to be a lawyer's view of the matter.
None the worse for that. For the law in these matters is
good sense, reason, and justice.
' G. Bramwell.'

54 A MEMOIR OF LORD BRAMWELL
Earl Granville, then Foreign Secretary, replied :
' 16, Bruton Street,
' London, W.,
' March 29, 1872.
' I was much interested by your letter to Tenterden, and
should much like to adopt your view, which I suspect would
carry little risk with it. But will it not be said that in civil
matters there is an authority to confirm awards ; the parties
may find themselves bound, if they do not proceed, in case
they differ about the arbitrator's jurisdiction, or about an
award made ex parte ? On the other hand, if the arbitrator
exceeds his jurisdiction, they have their legal remedy in the
Courts, which will treat the award as a nullity.
' Among nations there is nothing of this sort. Hence their
usual, and necessary, course has been to treat an agreement as
having fallen through when they differed about its meaning.
The great difficulty of this particular reference is that there
might be an unfavourable award, really founded more or less on
the indirect claims, without showing on the face of it that this
was so.'
Roundell, first Earl of Selborne, wrote :
' 30, Portland Place,
'October 18, 1872.
' . . . I have to thank you, and I do so very heartily, for
your extremely kind note. I am the more glad that my
reference to your name and authority, at Geneva, gave you
pleasure ; because (as I need hardly say) it was not made
with any other view than to the legitimate purpose of an
argument, in which I did not desire to practise any arts of
advocacy, but merely to contend for what I believed (according
to the best of my light) to be just and true.'
' Lord Bramwell's tastes and habits were of the
simplest,' writes one who knew him well in his
last years. ' He did not care much for club life ;
preferred his own fireside, and a book, or a chat

WISE SA WS FOR RAIL WA Y MEN 55

with a friend. A great lover of billiards, but would
put down his cue in the middle of a break to listen
to the sorrows of a poor neighbour.' Although
he knew everybody worth knowing, and was peer
of any living English subject outside the succes
sion, he never was in that fashionable society the
delights of which consist of showing one's self
off, abusing one's friends, or making love to their
relations, none of which things he was able to do.
Here are his ideas in May, 1873, when, presiding
at the fourth annual meeting of the South- Eastern
Railway Company Provident Savings Bank, he
utilized his holiday off the Bench to indulge in a
long chat with the company's men, full of homely
wisdom and ' the salt of life ' :
' ... Of all the good things which this world gives us, the
best, in my judgment, are liberty and independence . . . liberty
for each man to think and act for himself, and independence
which gives him the power to do that which he deems best for
his own happiness, and for the happiness of those he cares for.
I believe that these good things, like any others, can be acquired
in one way only. The best friend you can have, one who never
fails you (he is not a very sentimental friend), is a well-filled
purse. Without that ... a man is sure to be somebody's
servant ; he has not got that which will enable him ... to
exercise his own judgment as to what is best for himself, with
whom he shall work, and what work will do for him. . . . But
how is a man to acquire this valuable though unsentimental
friend ? Only in one way — by industry, prudence, and thrift.
... Of the good things which Nature has provided, there are
very few in which we can stretch out our hand merely to collect
them. We must labour to get them. . . . The Italians have
a saying about " Sweet do-nothing." I do not think that
proverb will ever be naturalized in England. Something in
the vigorous nature of Englishmen makes a certain amount of

56 A MEMOLR OF LORD BRAMWELL

work necessary for them. My own feeling is that the greatest
punishment I could be doomed to would be to be perfectly
idle— it would be the worst thing that could happen to me. I
do not, of course, recommend that men should do nothing but
work. When one hears of people being sixteen or twenty
hours upon an engine, it is lamentable. Where work is ex
tended in such a way as that, a man does not work to live,
but is living to work. . . . Now, then, how to keep wealth.
People must be prudent. The first way in which prudence is
exhibited or may be exhibited— for I am sorry to say a great
many people fail in it, especially in agricultural parts of the
country — is with respect to marriage. I speak with some
knowledge of what takes place in my own neighbourhood near
one of our stations. The boys and girls — for I cannot call
them men and women — get married when they have not a
single shilling to begin housekeeping with, positively without
a table or chair or a bed to lie down upon. . . . There is
another way in which money is improvidently spent, and that
is in dress. Now, we men are not so subject to that infirmity
as the other sex. ... In moderation, I like people to take a
pride in their appearance ; for, as a rule, people cannot be
smart without being clean, and " cleanliness is next to godli
ness." . . . On the other hand, it is very foolish to waste
money upon dress, whatever a man's station in life may be.
There is a particular class of people, whom I won't name more
particularly, who go round and persuade women to take goods
which they have not the means to pay for. I wish I had the
making of a law bearing on their cases ;* I would undertake
* One finds Lord Bramwell, in 1873, rejoicing because the
Legislature had made it rather more expensive for the class
who choose to deal with usurers to borrow money, hinting at
a ' grandmotherly ' Act of Parliament to prevent working men's
wives buying shoddy silk from hawkers, also at the need for
an inspector empowered to spill half the liquor then drunk by
workmen in public-houses. The latter suggestion is especially
interesting. But probably if all Sir Wilfrid Lawson's speeches
were minutely examined, it would be found that, at some time

' GRANDMOTHERLY' LEANINGS 57
that they should not recover a shilling, after they had tempted
women in their poverty. ... I may tell you a thing I heard
to-day. I was trying a case of a bill-discounter or money
lender. He was called, and he said, " I have given up
business because you cannot put people in prison now, and
consequently they don't pay." Upon which I said that it was
the greatest compliment to those who passed the Act of Parlia
ment that ever I heard. I should uncommonly like to see the
same, or a similar provision made by which these payments
should not be extorted from the husband by putting him in
prison. . . . But there is another way in which we all spend
more than is good for us — in eating and drinking, particularly
the latter. ... It is positively lamentable — one hundred
millions a year spent in drink in this country ! One hundred
millions a year ! If the good genius of Englishmen could only
stand by the side of those who are doing it and just give their
elbow a tilt as every glass goes into their lips ! I for one think
it would be positively a service to the country if one-half of the
entire quantity were spilt. I really think it would be a good
thing. " What," you would say, " waste fifty millions of
property ?" It is wasted now. Why, it could never be wasted
so badly as that is which is poured down the throat where it is
not wanted. ... I think it would be a very good thing if
the mischief could be obviated by some such good being as I
have supposed. It would be a very good thing if, when a man
is going to indulge in any vice, or to do anything that was not
good for him, if, instead of the pleasant part being put before
himself, he could have the other side of the question put to
him. A man says to himself, " I am tired ; I am out of spirits."
Perhaps he hears that the children are crying, or says, " My
wife is cross, for it is washing-day," or what not, or some other
inconvenience. " I will go to the public-house, for it is warm ;
or another, he has declared he would rather see a Bishop free
than an Archbishop sober. Lord Bramwell certainly was not
born a member of the Liberty and Property Defence League ;
events drove him in that direction. For his anti-alcoholic bias,
see also pp. 114, 118.

58 A MEMOIR OF LORD BRAMWELL
I shall find somebody I know. It is much nicer. I really
should like a glass of something to comfort me, for it is very
damp." That is the bright side of the question ; but suppose,
instead of that, he would say to himself, " I will go and lay in
a headache for to-morrow. I will make provision for my wife
going in rags, and my children with no shoes. I will store up a
stock of delirium tremens, and finish my days in a workhouse,
if not cut short by a fever or some other disease." You could
but say of such a man, then, " Poor fellow ! we must stop
him," or if people did not say it themselves, they would think
it. That is what those do who forget what it is they are doing;
but I am quite certain that it is an infirmity which the depositors
in this bank do not labour under. ... I am going to say
something for which I shall perhaps get into trouble. I have
not mentioned it to the directors, and very likely they will wish
I had not brought it here ; but I have always had a bad habit
of saying what ought not to be said. I will tell you what it is.
I should like to make you all shareholders in the company very
much. Mind, upon better terms than ordinary shareholders,
because I should like to make this provision : that your dividends
should never be below 4 per cent, upon your deposits ; while,
if the shareholders got more, I should like you to do so.
. . . We shareholders should not lose by it, because, although
every man should do his duty to the best of his ability,
whether at work for himself or according to agreement, yet
we all know there are two ways of doing one's duty. We
know a man never works so zealously as when he is at work
for his own benefit. . . . Therefore, if by an arrangement
of this description the servants, workpeople, and officers of
the company ... do their duty even more zealously than
they do now, the possibility — nay, the probability — is that
this apparent sacrifice would be more than made up to the
shareholders. . . .'
He was quite free from affectation ; never had
the grand manner, often the sole reliance of men
not certain (for one reason or another) how they
will be received. At the house of Sir Henry

THE DRAMA, MUSIC, DISCORDS 59
Holland (Lord Knutsford's father), he once acted
the part of a Judge in some charades. The word
was 'plaintiff'; the last scene was a breach of
promise of marriage action. Sir George Bramwell
summed up most ferociously, to the great delight of
beholders, the children especially. Knowing a great
deal about music, and having a fine natural ear, his
sufferings, especially when on the Welsh Circuit,
from the complimentary performances of the Sheriff's
trumpeters under the window of his lodgings, were
sometimes acute. In a Welsh town one day, he
suddenly threw up the sash, and shouted to the
trumpeters in the street below, ' My men, give one
good blast, as loud as ever you can, and then pray
go home.' He asserted that Mr. Justice Crompton
— supposed, literally, not to know 'one tune from
another ' — did once, and only once, profess to
recognize ' God save the Queen.' They both at
tended some public dinner in Dublin ; the band
struck up a tune ; Mr. Justice Crompton loyally
rose to his feet. When the music ceased, Sir
George Bramwell explained with great glee to his
friend that the band had been playing a tune known
to musical experts as ' The Wearing of the Green.'
Mr. Justice Crompton, however, used to relate in
revenge how, on circuit, they were once shown into
a sitting-room at the Judges' lodgings, which, to
Crompton's horror, and the delight of Sir George
and Mr. Arthur Coleridge, contained a piano. A
very unmusical man is sincerely pained by piano-
playing, and the prospect was rather dismal, until it
was discovered that the piano was locked. Finally,

60 A MEMOIR OF LORD BRAMWELL
the landlady appeared, and explained, with profuse
apologies, that the key was lost also.
He had an abundant subjective sense of the
ridiculous ; no ambition to make other people laugh
— a penetrating imagination which enabled him to
instantly detect grotesque contrasts and absurd
consequences arising out of particular situations,
assertions, or arguments. Dying in the year 1892,
he never had the chance to study and enjoy ' The
Law of Employers' Liability at Home and Abroad,'
by Mr. A. Birrell, M.P., more especially the sug
gestion that Lord Holt, ' 200 years ago,' might
have ruled that, whenever a lady hires a cook, an
1 implied term ' must be added to, or inserted in, the
contract compelling lady aforesaid to provide cook
aforesaid with a bicycle, and the suggestion that it
is insurance brokers who pay moneys due on life
policies. Some Bramwell letters show that he en
joyed intensely, if demurely, a mental picture of
what must ensue should his opponent's wrong logic
be yoked to the right facts, or his opponent's wrong
facts yoked to right logic. They reproduce, too, in
curiously exact fashion, his way of talking. As one
reads, one almost hears his voice, and a tinkle of
that laughter which writing them excited in him.
The man devoid of humour or imagination never
knows the subdued joy which it must have given
him to write :*
' ... An ingenious gentleman has suggested that " there is
something better than law and order — viz., justice." I agree.
* The Liberal Unionist, May 4, 1887, article, 'The Crimes
Bill.'

NO TRUCE FOR PHRASE-MAKERS 61
" Nourishment is better than victuals and drink." But as we
cannot be nourished without food, so we cannot have justice
without law and order. . . .'
The value of this passage depends on a man's
power to picture to himself the kind of effete person
who went about London clubs between 1880 and
1887 saying, ' There is something better than law
and order — viz., justice,' as well as the other kind
of person who profited by this beautiful aphorism
to commit murder, fraud, and outrage in Ireland
with impunity. Having frequently dined with the
first kind of person, and sentenced the second, Lord
Bramwell appreciated both thoroughly. On June 5,
1878, when he presided at the South-Eastern and
Metropolitan Railway Savings Bank and Provident
Societies' annual meeting, Mr. B. Whitworth, M.P.,
one of the directors, in recommending total absti
nence to the company's servants, had said, ' I
am now in my sixty-third year of water-drinking.'
Replying to a vote of thanks, Sir George Bramwell
wound up :
' . . . Mr. Whitworth has gone a little beyond the exact
truth, I should think. Surely the first year of those sixty-three
he did not drink water. He may have done so since. All I
can say is, I hope he likes it. . . .'
The railway men laughed boisterously ; but what
he enjoyed was the mental vision of Mr. B. Whit
worth solemnly sucking clear cold water from a
feeding-bottle in the year 18 15.
The notable case of Bank of England v. Vagliano
Brothers, decided in the House of Lords, March 5,

62 A MEMOIR OF LORD BRAMWELL
1 89 1 (Lords Bramwell and Field the minority,
Lords Halsbury (Chancellor), Selborne, Herschell,
Watson, Macnaghten, and Morris the majority),
reversing the decision of Courts below, produced
the usual demands, a weekly paper cautiously but
earnestly pleading for Parliamentary protection
against forgeries by confidential clerks. This very
short letter of August, 1891, on the dry topic of
' The Negotiability of Bills of Exchange ' — perhaps
the last he ever wrote to the press — has much
humorous suggestion :
'Sir, ' You most truly say that " if the negotiability of a bill
of exchange is to be restricted, that should be done in no
ambiguous fashion, but in a way in which the ordinary busi
ness man can readily understand."
' Would you favour your readers with a form ?
' Your obedient servant, 'B.'
In this wise, although he was eighty-three years
old, he took the trouble to remind people, who
would probably soon read his obituary notice, that
the Parliamentary interference called for would do
far more harm than occasional forgeries. For his
own special amusement he sketched with a slight
touch the gentlemen who wanted Parliament to
interfere, conscientiously trying to invent a harmless
form of bill of exchange, applicable, but not
embarrassing, to every firm, to every kind of trans
action, arising all over the empire every week-day
in the year, and yet warranted to prevent con
fidential Greek clerks forging unpronounceable

THE EVOLUTLON OF A 'FORM' 63
names. The editor appended a note to Lord
Bramwell's letter : ' When the object is to meet
special cases, how can a general form be given ?'
How indeed ? But the resources of Parliamentary
civilization are inexhaustible, and for Lord Bram
well, behind the little question in his letter, arose a
mental picture of sundry M.P.'s in a hot committee-
room overlooking the Thames trying their hands at
forgery-proof, but not really inconvenient, ' forms '
for three weeks in July, said M.P.'s consisting of a
country gentleman, an authority on Church schools ;
a banker, an authority on rose-growing and breed
ing toy-terriers ; a very dull Scottish solicitor who
had been left a fortune by an uncle in Calcutta, and
had thereupon bought a Scottish mining constitu
ency controlled by the Irish vote ; an ex-Guardsman
who was totally deaf; a handsome young reporter
on a Fenian newspaper who had married his
Bishop's elderly niece, and so qualified for Parlia
mentary honours ; a gentleman who had written a
good deal about stability of ships at sea ; a cotton
spinner who kept fox-hounds ; or a speculator in
suburban leaseholds, who had done much for the
indigent blind in his time. Lord Bramwell's letter
invited these experts also to try their hands at a
form of bill of exchange which, as the newspaper
suggested, would 'effectually limit its negotiability,
but not in such ambiguous fashion as to lead an
ordinary business man astray.'
He never hid his contempt for twisted, dishonest,
or question-begging words. On May n, 1866,
when opposing in the House of Lords the second

64 A MEMOLR OF LORD BRAMWELL
reading of a Durham Sunday Closing Bill, he
said :
' This Bill is to prevent the sale of intoxicating drinks in the
county of Durham on Sundays. Wines and spirits are in
toxicating liquors, and why is one particular property to be
singled out ? Would your lordships speak of water as a drown
ing element ? Yet it undoubtedly is. . . . I ask, What
would your lordships think if a man were to come on a Satur
day night and demand the key of your cellar . . . and when
you said, " Have you any reason to believe that I will make
bad use of my liberty to get at the liquor in my cellar ?" the
man were to reply, " No; but there is a man four doors lower
down in the street who will make bad use of his " ?'
As he grew older he grew gentler — more tolerant
of other people's views, more unwilling to use strong
or lethal language. Sometimes very old age is dis
figured by very new language. On February 7, 1891,
when the Law Lords were listening to the appeal
of Sharp v. Wakefield, Mr. George Candy, Q.C.,
argued that licensing magistrates might possibly
do that which was 'unfair and unjust.' Lord
Bramwell suggested ' harsh and hard ' as better
words. The following matter did, however, make him
very angry. On December 9, 1884, a Times leader
dealt with the sale or proposed sale of land and
buildings pertaining to Clement's, Barnard's, Clifford's
and Staple Inns. a.d. 1837 one of the Pollock
family had been born in Serjeants' Inn, which made
the proposed sale rather impious. Those structures,
the Times said, ' lent poetry to the ancient quarter,
preserved calm and repose profounder than the
fields.' London 'thought them its own possessions

SERJEANTS INN 65
in a peculiar manner.' ' Nathaniel Hawthorne,' too,
had been ' fascinated by the peculiar tranquillity ' of
those ancient inns ; ' but the persons who had con
trol of the property ' had had ' the moral hardihood
to wind up and divide the assets ' ; had exhibited ' a
want of equity to their predecessors ; had strangled
their successors ' ; had ' lawfully plundered their
societies,' ' plunged at the associated funds like a
thief at a watch ' ; had been guilty of ' confiscation '
in a ' magnificently rapacious style. . . .' This
was strong language for the Times — strong enough
to have conceivably been written by Abraham
Hay ward, who in his latter years had for some
reason or other once more become a Radical. The
Times article added that 'the sale of Serjeants'
Inn (in 1877) set a flagrant example of analogous
spoliation.' ' This statement,' wrote Lord Bramwell to the Times, Decem
ber n, 1884, 'is quite unjustified. Serjeants' Inn, or, rather,
the Society of Judges and Serjeants, was not an Inn of Court.
It was not chartered. No one was bound to join it, no one
had a right to do so. All candidates were proposed and
seconded, and when elected paid an enormous fine — ^450,
besides annual commons. It never had any duty. It was a
purely voluntary society, I suppose, for the purpose of pro
viding chambers and dinners for its members. These objects
had ceased to exist. Its members had their chambers in the
Temple. The Judges only went to the dinners four times a
year, partly in compliment to their brother Serjeants, partly to
talk about the affairs of the Inn, partly to settle such important
matters as who should go to St. Paul's in Easter and who in
Trinity terms. A few choice spirits among the Serjeants still
dined  four or five in number — on a few days in each term.
But if we should have had successors we should not have sold
5

66 A MEMOIR OF LORD BRAMWELL
the property. We were not to have any. No more Serjeants
were to be, nor have been, made, and the only effect of our
keeping the property would be that it would vest in the last
surviving member, his heirs, executors, administrators, and
assigns. Worse than this, we could not keep afloat. Our
best income came from ^he fines on admittance, and as they
ceased our expenses exceeded our income. We could have
paid our way if we had no dinners — that is to say, we could
have lived if we gave no sign of life.
' Well, but what about the money ? Various suggestions,
more or less vague, were made for its disposition. I protested
on two grounds : (i) that all the proposals were for mischievous
charity ; (2) that I object to all corporate charities, being
strongly of opinion that a man's almsgiving should come out
of his own particular pocket. I received my share, which did
not more than return me principal and interest, for the cost of
which I had received no return except four dinners annually —
dinners in a large hall with our clerks, intolerably long, noisy,
and wearisome. Is this spoliation ? Who has been spoiled ?
You say that what was done was probably not illegal. I
thought " spoliation " was. Those who want to prevent
"spoliation" or to "spoil" had better not say the case is
" analogous " to that of Serjeants' Inn. Every member of the
society rejoiced at its end. For my own part, my only regret
is that my share of the " spoil " was no greater.
' Your obedient servant,
' Bramwell.
' P.S. — I would recommend to your notice Serjeant Pulling's
" Order of the Coif," chapter v., treating of the Inns of Court
and Chancery and of the Inns of the Judges and Serjeants.
' December 9.'
This letter seems to have disposed for the time
being of the charge of ' spoliation,' greed, and breach
of trust, which Lord Bramwell resented so keenly.
In December, 1884, public attention was fixed on
franchise and redistribution of seats questions ;

WHAT LT WAS NOT 67
political oratory abounded to an extent quite in
conceivable in these tranquil post-Gladstonian times ;
just then Irish dynamiters tried to blow up London
Bridge. Serjeants' Inn was not mentioned again
until November 3, 1886, when a lengthy special
paper in the Times commented on the sale of
picturesque Staple Inn to Messrs. Trollope. A
passage in this paper caused Lord Bramwell to
write, November 6, 1886:
' In your paper it is said, " The Serjeants' Inn, the Inns of
Court, the Inns of Chancery, were, in fact, the constituent
parts of a legal University, designed to knit closer together the
several branches of the Law." I do not know how branches
are knit together, nor how Universities knit anything ; nor do
I believe that there ever was a legal University.'
He was evidently rather angry.
' But assuming that there was, it is untrue that Serjeants'
Inn was ever part of it. I use the word " untrue " because
the statement is repeated after its untruth has been pointed out.'
Lord Bramwell was, of course, thinking of his
previous letter of December 11, 1884. Like the
rest of the public, he believed that writers in the
Times knew its files by heart. If they did, they
would be the wisest people in the world.
' The society of Serjeants' Inn was a private society, for the
convenience of its members. It had no duties, no powers.'
He then repeats a portion of his former letter,
showing how it was a mere club :
' It never was in any way " knitted to," or connected with,
any Inn of Court or Chancery. The persons eligible for
membership were Serjeants— not Judges only, as said in the
article I refer to.'
5—2

68 A MEMOIR OF LORD BRAMWELL
On November 8 Mr. Baylis, Q.C., wrote to the
Times at some length, pointing out, inter alia, that
Blackstone calls Inns of Court ' new Universities,
a sort of collegiate order,' etc. He also denied
that Serjeants' Inn was a 'private society'; its
members had exclusive right of audience in the
Court of Common Pleas, etc.
On November 1 1 Serjeant Pulling wrote, con
firming Lord Bramwell's statements, adding that
the Society of Serjeants had acquired ' an un
profitable lease of their premises at great expense
in 1834,' and had 'quietly and prudently wound
up the society in 1877.'
On November 12 Lord Bramwell wrote :
' The letter of Mr. Baylis exhibits a crass ignorance of the
subject on which he writes, and a proportionate confidence.
Serjeants -at- Law had exclusive audience in the Court of
Common Pleas, not because they were members of the Society
of Serjeants, or of any Inn, but because they were Serjeants.
They were so, not by being elected members of the society,
but by command from the Crown. A Serjeant would have
been entitled to share in this privilege had he never been, or
ceased to be, a member of the society or Inn. This right was
not abolished in 1834, as Mr. Baylis says. It existed till
1846, when it was abolished by statute. The " venerable
order" of which Blackstone, as cited by Mr. Baylis, speaks,
is not the Society of Serjeants, not the Inn, but the Order of
Serjeants itself; of which order, I repeat, a man might be a
member without being a member of the society or Inn. One
of the last Judges of the Court of Common Pleas who was a
Serjeant never was a member of the society or Inn. When a
man was made a Serjeant he was eligible to the society if it
chose to elect him.
1 The statute 36 and 37 Vict., c. 66, had nothing to do with
Serjeants' Inn. The eighth section was put in because it was

WHAT IT WAS 69

contemplated that no more Serjeants should be made. What
constitutes a University is, I believe, very uncertain ; but I
repeat it is untrue that the Society of Serjeants, Serjeants'
Inn, or Inns, ever was or were part of any University. I
repeat, the Society of Serjeants or Serjeants' Inn had no con
nection with any Inn of Court or Chancery. It had no duties,
no powers. Mr. Baylis asks why, " immediately after the
passing of the Act 36 and 37 Vict., the members of Serjeants'
Inn sold the property and divided the spoil." I content my
self with saying, because they thought fit. The statute re
moved no impediment to their doing so. They could have
done so before had they pleased. Perhaps Mr. Baylis will tell
us whom we " spoiled." It is strange he should venture to
apply that word to the act of a body of men the least likely in
the world to " spoil " anyone, and who knew their rights,
which Mr. Baylis does not. Perhaps that accounts for what
he says.'
On November 16 Mr. Baylis wrote again, citing
many ancient authorities to show that such a thing
as a legal University was not inconceivable. Lord
Bramwell, who had been restored to good humour
by the feebleness of his opponent's argument, wrote
finally on the 1 7th :
' The letter of Mr. Baylis exhibits great research, extending
even to the Law List, a most respectable publication. I prefer
my own authority for the following reasons. Nearly thirty-
one years ago I was made a Serjeant. After that I was elected
a member of the Society of Serjeants. Those who elected me
might have refused to do so. I suppose this shows that
Serjeants and the Society of Serjeants were different. Next,
as to the society being part of a University : during the whole
thirty-one years it has never done anything in common with
any other Inn, any barrister or any student.'
Serjeants' Inn had, in short, become a nineteenth-
century club with a sixteenth-century name— a club

70 A MEMOIR OF LORD BRAMWELL
for which there was no demand, which never could
elect any new members. When the cost of keeping
up the club outweighed benefits derived by members,
they very properly sold their premises and interest,
which otherwise must have become a tontine.
Lord Bramwell was, by November, 1886, a con
spicuous Liberal Unionist ; party bitterness was
then intense. Gladstonian newspapers, therefore,
accused him of dishonourable conduct in the matter,
suggesting that the money realized by the sale of
Serjeants' Inn ought to have been given to increase
the salaries of London Board School teachers, to ' the
poor,' etc.
The business of a Judge is to dispense the King's
justice, which British subjects have learnt to believe
can be nothing but perfect ; in criminal cases super
intending the trial of those who are alleged to have
wronged their neighbours, defied, profaned the law,
and on conviction decreeing the penalty ; in civil
actions helping to justly determine disputed claims
of individual right. Beyond this a Judge has no
duty to the public — that is to say, no locus standi in
everyday affairs, no obligation, such as those who
instruct, amend, or amuse the public have, to pro
vide a creditable show of some sort. Therefore a
Judge's reputation is made gradually. Knowledge
about him filters through slowly from members of
the legal profession, from jurymen and witnesses.
The press, very reserved but emphatic on such
matters, contributes also. It was in mouldino- the
actual task-work of justice that Sir George Bram
well's influence was most felt. ' In court,' says one

CHARGES AND SENTENCES 71
who knew him well, ' he always held the reins and
guided the case.' However eminent the counsel
engaged, he was unmistakably captain on his own
quarterdeck. Jurymen, whose opinion counts for a good deal,
were glad when he was on the bench, because his
summings-up were as terse, clear, easy to under
stand, as his letters to the newspapers. Some
Judges' charges are very diffuse, difficult to follow.
Baron Bramwell put the salient points, nothing
else, and without verbiage, rhetoric, padding. In
summing up he thus (as has been often told) con
densed an enormously lengthy argument from
counsel in defence of a farmer charged with shoot
ing at a boy who was stealing the farmer's apples :
' Considering the materials he had, I am surprised,
gentlemen,' said Sir George, ' that the learned
counsel did not make his speech longer. I, how
ever, shall leave the case to you in eight words :
The prisoner aimed at nothing, and missed it.'
Yet he took great pains with, gave much considera
tion to, sentences ; frankly acknowledged that he
welcomed the opinion on that matter ' of any
sensible man,' which would show at least how the
case struck on-lookers. A prisoner was once con
victed before him of a very terrible and repulsive
crime, committed under circumstances never likely
— indeed, impossible — to recur. Sir George Bram
well saw no necessity for^a 'deterrent' sentence;
there was no danger of that kind of crime spreading.
Accordingly, although it was technically a capital
offence, he passed sentence of nine months' im-

72 A MEMOIR OF LORD BRAMWELL
prisonment only ; thus, as he told a friend, express
ing the law's vengeance or disapprobation — one of
the ingredients in all sentences — without inflicting
needless suffering. In the profession he had
acquired a reputation for taking a stern rather than
a sentimental or neo-humanitarian view of a Judge's
duty. On January 7, 1856, Sir John Mellor gave
him this well-meant but really unnecessary warning,
thoroughly characteristic of an English Judge :
' . . . I congratulate you and the profession, but pray do
not go and hang people right and left to please the Times.
See article to-day. . . .'
He had that peremptory temper which comes of
acute sensitiveness and capacity for taking keen
interest in every phase of a question, knowing
tolerably well what was right, eager to have right
done quickly ; he was apt to get impatient about
anything which seemed to thwart justice. Now
and then, on the bench, his wrath got the better of
him. Before sentencing a certain man, convicted
of a series of terrible assaults on young children, he
said : ' Your counsel tells me that four years' penal
servitude will kill you. I don't care if it does kill
you.' Such sayings got him the name of an un
feeling Judge. He did not protest ; indeed, he
rather persuaded himself that he had ' no feeling.'
In Flintshire he tried an old woman of seventy,
indicted for the murder of her husband. Forty
long years they had lived together, the man treat
ing the wife with unbearable cruelty all that. time.
Perhaps she was partly to blame ; anyhow, one
night she got a razor and cut her husband's throat,

GREAT HONOUR PALD TO HIM 73
then cut her own, but did not at once die. When
he came to sum up, Sir George Bramwell related to
the jury the old woman's life and treatment. By
degrees the misery and pathos of the story was too
much for him : he put his hands before his face and
burst into tears. Recovering himself in a minute
or two, he warned the jury to banish from their
minds that irrelevancy in his charge. They there
upon found the old woman guilty. She died within
a day or two in gaol. ' I can't think,' said Baron
Bramwell afterwards to a friend who saw those
tears, ' how I came to make such a fool of myself.'
What the Bench and the Bar thought, after
knowing him well as Judge of First Instance and of
Appeal for twenty-five years was shown by the
great compliment paid to him upon his retirement.
In the spring and summer of 1881, Lady Bramwell's
health had given way. She was a very careful,
anxious spouse. The doctors said that she could
not stand the English climate in winter. In the
middle of September his intended resignation was
announced. He actually retired during the long
vacation, at the special request of Lord Selborne,
to meet official convenience.* At Maidstone, in
July, there was a private and informal leave-taking
between himself and the members of his old circuit,
''¦'¦ Lord Coleridge wrote, October 19, 1881 : ' . . . You are a
capital fellow except for what you are going to do on the first of
November. . . . You shall try Lefroy if you like it, with all
my heart. It might be a very striking last appearance before
the footlights. Poor dear Cockburn would hardly have given
you such a chance ! . . .'

74 A MEMOIR OF LORD BRAMWELL
formerly the Home, now the South- Western. As
customary, the Bar entertained the Judges — Lord
Justice Bramwell, who presided in the Crown, and
Mr. Justice Denman in the Civil Court. The
dinner was a notable success, an event in legal
annals. ' But such an entertainment,' the Times
said justly, ' could not satisfy the Bar at large.' A
banquet was given to Lord Justice Bramwell in the
Inner Temple Hall, November 28, 1881, by all the
Judges and by the great body of the Common Law
Bar. Twenty-six Judges and 250 members of the
Common Law and Chancery Bars, as well as many
Government officials of rank, were present. ' All
the other Judges then living,' said the Times, ' had
practised before Sir George Bramwell for years,
and consequently could not help looking up to him
with the deference due to known experience and
the long exercise of authority.' The Hall and the
company made a splendid spectacle. No similar
honour had ever been paid to an English Judge
before. The Bar of England is the most critical and hard
to please of possible juries ; yet there had never
before been a man so popular with the Bar — none
to whom such an honour was so appropriate.
Further, there was the foreboding- that never again
would those old halls and their frequenters look on
an English judge with a like record of service. It
was suspected that the race which bred such students,
the forces which wrought and hammered such a
character as his into the shape it had taken, the
needs of jurisdiction which for a quarter of a

WHAT HIS CO-WORKERS THOUGHT 75
century gave scope on the Bench to his matchless
powers and qualities, were passing away, not to
return. There would be ' strong men after Aga
memnon,' but in future fewer chances for a personality
like his, for a mighty exponent of Common Law,
since Parliament was plastering over all chinks and
crannies with statutes. If another Bramwell did
happen to arise, he would have to accept a colonial
judgeship in Saturn or Jupiter.
At the time, Sir George Bramwell was, it is true,
making way for other men. The new Judicature
Act might have rendered Judges immortal. Here
was proof that it had not. Allowing for the fact
that the most admired, acceptable thing most men
ever make is a vacancy, and that there is more real
joy over one sinner who resigneth than over ninety-
and-nine just appointed men, it is certain that the
spoken and written expressions of affection and
respect — reverence almost — at that time were
perfectly genuine. One of the services which Sir
George Bramwell had rendered to the Bar during
his twenty-five years on the Bench never could be
put into words, without inferentially discrediting
other Judges by contrast. He showed always that
he understood what pleaders, young or old, confident
or nervous, famous or obscure, said or tried to say.
Pleading before a dull or weak Judge, like trying to
carve for hungry people with a blunt knife, means
double work, lost temper, spoilt materials. Nothing
is quite so bad as the obtuse man ; he shatters the
Bar's faith in the supremacy of natural law in the
spiritual world. If you have an ignorant, unfriendly

76 A MEMOIR OF LORD BRAMWELL
or prejudiced Judge, you can go to the Court of
Appeal. If you have to deal with an ill-bred man,
you can show your friends how superior your own
breeding is. Some of the praise given to Sir George
Bramwell for his kindness, consideration, generous
help to the profession, meant praise for his knack of
always understanding what advocates were driving
at. One doesn't really thank a Judge for being
' kind ' if he's dull also. Something of this was in
the mind of those present at the banquet in
November, 1881. It couldn't be fully said, lest
some should whisper to themselves, ' Yes ; he was
so unlike A, B, C, or D.'
What the Times said, July, 1881, could not be
better said :
' . . . Few Judges have been more liked by the Bar than
Lord Justice Bramwell. Gifted with great natural vigour of
mind and quickness of apprehension, he was yet remarkably
patient in listening to their arguments, and showed still more
remarkable candour in putting their arguments for them in the
strongest and clearest way in which they could possibly be put,
so that they could not hope to put them better (a very happy
way of repressing undue prolixity), and then if he desired to
show their fallacy, he would do so in the Socratic way, by
questions so shrewd and keen that no sophistry could evade
them, and yet in a good-natured way that never could annoy,
and often with a touch of humour that would even amuse, and
thus a long argument would often be cut short and its fallacy
exposed in the clearest, shortest, and most pleasant and satis
factory way, and without annoyance to anybody. No wonder
that the Bar liked a Judge who thus dealt with them — one who
had a giant's strength and did not use it tyrannously or unfairly,
but with candour and good humour, and racy frankness and
thorough kindliness of manner, which made every man feel
that he had been able to make the best that could be made of

AND THE REASONS

his case, whatever it might be ; and it was only very great
stupidity, or very great persistency in wrong, which could be
proof against his mixture of shrewdness and good humour or
rouse his naturally quick temper into anger. . . .'
Whether that unexampled tribute of November 28,
1 88 1, did more honour to the guest or to the givers
of the banquet it is not easy to say. As for the
guest, the public, from a sort of instinct, had
approved each honour or promotion given to him,
Only a great people could have been proud of such
a man, could have continued, all through the bravest
days of the Victorian era, to regard him as one of
the pillars of the nation. As for the givers, only
men who in their innermost hearts revered most
of all honesty, courage, diligence, kindness, truth,
could have taken so much trouble, could have paid
him that compliment then. Of legal equipment,
wit, acuteness, stored learning, gifts of money-
making, and success, the Bar had plenty of examples
around them. These things the Bench and the Bar
of England had never cared to applaud in the same
way. With a fine (perhaps accidental) sense of artistic
relief, light and shade, Sir William Harcourt, then
Home Secretary, and Lord Coleridge were placed
at the dinner-table next and next but one to Sir
George Bramwell. Just such speeches as ought to
be made were made by Sir Henry James, who was
in the chair and proposed the guest's health, and by
Lord Coleridge returning thanks for the Bench. Of
one sentence in Sir George Bramwell's reply — ' I
declare that if I had the choice whether to be a

78 A MEMOIR OF LORD BRAMWELL
great Judge or a good Judge, I should prefer the
latter' — the Times said, March 10, 1892, the day
after his death, that ' it was his rare fortune to be
both.' The phrase he used — not perfect, since to be
a good Judge means in English so many things, some
very commonplace — declared, above all, that it was
better to be a good man than a great Judge, the
same as Walter Scott's last words on his death-bed
meant. Lord Bramwell also said in his speech of
thanks, ' I know I have an anxious temperament.
I ask pardon of any whom I have offended.'
The Daily News had hinted, three months before,
that he might be raised to the peerage. Some of
the experts in the press, while deploring his retire
ment as a public misfortune, added that the Common
Law autocrat in the Lords, Lord Blackburn, would
be none the worse for a colleague. Lord Armstrong
wrote to Sir George a warning not to take the
suggested title of Lord Edenbridge, lest his family
name should be merged, and so forgotten. He was
created Baron Bramwell of Hever, February 15,
18S2, and took his seat in the House early in that
year. For the latter occasion he borrowed Lord
Esher's robes, which arrived with this on a scrap of
paper :
' My dear Lord and Master,
' I send you my robes.
' I have not a cocked hat.
' They give you one (I think) at the House of Lords.
' Don't flog me. ' Ever dutifully yours, ' ESHER.'

[ 79

CHAPTER III.
' THE POLITICAL ECONOMY OF OUR YOUTH.'
Why Lord Bramwell intervened in public affairs — Partial
triumph and acceptance of Free Trade, Free Competition,
Free Contract, between 1846 and 1870 — Why ascendancy
of political economists short-lived — Fibres of ' paternalism '
and ' protection ' left in soil — Eppur non si muove — Growth
of ' new mildness,' and increasing distrust of economic
liberty — Mainly result of new wealth, material prosperity,
humane legislation — Revival of ' some kind of Socialism '
after 1880 — Foreign influences — The ' Historical' School
— Spurious ethical sanction for movement — Kinship with
Sacerdotal Economy of Middle Ages — Tendency towards
' some kind of Socialism ' also potent on side of juris
prudence.
It has been questioned by an eminent critic and
sincere admirer of Lord Bramwell's career whether
he was quite as great a success in the Court of
Appeal as he had been in the Court below. An
explanation of the disappointment thus indicated is
suggested by a high authority : It was as Judge of
First Instance that Lord Bramwell's special powers
and gifts showed to most singular advantage, because
the penetration, logical directness, ' high initial
velocity ' of his intellect — his workmanlike knack

80 A MEMOIR OF LORD BRAMWELL
of mastering facts, assaying evidence, and applying
law — acted as solvent to problems, difficulties, doubts,
which come before juries, or before a Judge sitting
in banc. In a sense, those powers and gifts may
not be the highest of all ; it happens that they are
the rarest. On the other hand, the English judiciary
has of late years been rather overendowed with
those more subtle and impressive attributes which
go to make 'great' Judges of Appeal. To compare
him as Judge of Appeal with, for instance, Lord
Justice Bowen or Lord Selborne, is like comparing
Cobbett and Spinoza. After he went to the House
of Lords, Lord Bramwell showed, until the last few
months of his life, no symptoms of brain-weariness
or failing powers. His judgment in the railway
case (p. 148) is a superb example of simplifying
questions and clearing the ground. His judgment
in the Bank of England v. Vagliano, March 5, 1891
(he was eighty-two at the time), was a masterly
effort to disentangle the elusive threads of that most
difficult case, while the reported judgments of Lords
Halsbury, Selborne, and Herschell, especially in the
matter of bankers' negligence, remind one that a
judicial revolution had been silently going on since
the case of Tucker v. Robartes, in which Lord
Bramwell had taken enormous interest. The ground
was slipping from under his feet, and he knew it.
' Probably we' (Lord Field concurring) 'are wrong,'
he said.
Lord Bramwell's active, if intermittent, inter
vention as critic or combatant in that field where
jurisprudence and political economy in relation to

A SECOND CAREER 81

governmental tactics are causes of war, covers a
period of about ten years — from his retirement in
1 88 1 until his death in 1891,
He had a twofold reputation among his country
men — one might say, two careers. As advocate
and master of legal procedure, he rapidly achieved
success ; on the Bench won additional renown, never
dimmed. When already approaching old age, his
opinions on public questions came to be familiar to
many of his countrymen, who previously had re
membered, in a general way, Baron Bramwell, the
blunt, wise, witty judge, famous for delivering charges
very well from the Bench. His way of taking his
holiday— of enjoying that leisure which he had
surely earned — was to 'descend into the street,' as
French rhetoricians say, to take his chance like the
humblest volunteer in the bodyguard of truth, as
critic and debater on questions of the day, by means
of terse, grave, good-humoured, and not easily
answered remonstrances, in the Times and else
where. From 1880 to 1891, Liberal leaders were
trying to banish ' abstract ' English ideas about
other things besides political economy to Saturn
and Jupiter. Handling problems of jurisprudence,
Common Law rights, public equity generally, he
wrought with a firm, sure hand. Thousands of
readers, amused or edified by what he wrote about
' Drink ' or ' Land Nationalization,' scarcely noticed
his letters, of far greater importance, about contract.
His reassertion of the Liberal creed (in a certain
and important sense the only one before the nation
for many years), although fragmentary, and put
6

82 A MEMOIR OF LORD BRAMWELL

forward without any claim to cover the field of dis
cussion, prevented the doing of some things which
consistent Liberals had always protested against ;
was a great encouragement to not a few thinking
men inclined to dread, after 1881, that equity,
public faith, security of property, and those national
characteristics depending on unhampered individual
freedom and self-help, were seriously imperilled in
this country ; told especially upon that undemon
strative class who win not every great electoral
contest in this country, but the best two out of
three — 'the rubber,' so to speak. A Judge or a
peer gets a good hearing, especially whenever
' points of lawlessness ' are raised by statesmen or
politicians, but not necessarily a favourable hearing.
That Lord Bramwell's writings got on their merits,
solely because his arguments seemed sensible, and
very hard to deny.
Why he intervened in controversies of the day,
wrote pamphlets, letters to the press, delivered
addresses, became a zealous member of the Liberty
and Property Defence League, may be asked,
because not many men who achieve fame on the
English Bench care to step down into the polemical
ring to fight with beasts at Ephesus — in Fleet
Street and parts adjacent. The English people
like to think that not only their judges, but all men
who have once taken official ' vows ' to renounce
political bias, favour, or partiality, so abstain. A
tradition has grown up that one cannot well answer
a Judge ' back,' any more than one can a Bishop
speaking from the pulpit ; therefore, neither has ever

WHY HE COULD NT SIT SILENT 83

been a very welcome controversialist on ' lay ' topics.
When an English Judge whose political utterances
have been freely quoted happens to try a case in
which some politician is interested, the average
Englishman feels somehow as if he had been non
suited himself. No doubt Lord Bramwell shared
the English prejudice in the matter. For many
years he scrupulously avoided party politics — one
reason why his intervention in purely economic
or legal discussions never gave offence or made
enemies for him. People saw that he was obviously,
painfully honest ; wrong, perhaps, but certainly
honest, sino;le-minded. Then, Lord Bramwell wasn't
wrong often. Some of his reasons for intervening
in public controversy were unheroic enough. He
had fewer domestic interests and distractions than
most men ; after 1881 a good deal of time to spare
for letter-writing, etc. ; an extensive correspondence
with clever men, who wrote to him to get his opinion
or approval, not for amusement's sake. His letters
to the press are often finished works of art — if,
following Schiller, one may recognize the true artist
' by what he omits.' Writing to the newspapers
was for Lord Bramwell undoubtedly an intellectual
gratification, just as sketching is for a receptive
draughtsman. He saw points quickly, did not want
them lost.
Another reason was, that such a man holding such
opinions really couldn't keep silent. Considerable
forces were already making for reaction against the
ascendency of his friends the political economists
when Sir George Bramwell, enjoying the com-
6—2

«4 A MEMOIR OF LORD BRAMWELL
parative leisure of a Lord Justice of Appeal, found
himself drifting into criticism and controversy. They
worked more definitely, so soon as Socialists and
semi-Socialists in both political camps got their hands
on the throttle-valve, to weaken and diminish the
nation's respect for principles of jurisprudence, for
distinctions between governmental right and wrong,
which he held to be fundamental. Even as early
as 1870 there were really not many covenanted
defenders of political economy left, although it might
have been said, between 1840 and 1870, that to root
out from the economic and political fields the last
vestiges of paternal restraint and capricious inter
ference inculcated by mediaeval jurists and economists
had been the glory of ' Liberalism.'
A steady, if scarcely perceptible, revolution in
public sentiment, a distinct moral change in every
grade of civil society, was the result in this country
— as De Tocqueville says it was in the United
States — of milder laws, increased prosperity, and the
peaceful obliteration of class disabilities. Plenty of
angry complaints, demands for political change or
reform, were still heard ; but already by 1870 a
generation of Britons had reached manhood who
had never felt, nor even witnessed, infliction of con
scious injustice, hardship or wrong by their "rulers';
the old savage intransigeance of the early part of
the century among ' the populace ' was becoming a
memory only. Commencing with the middle class,
the new mildness, tolerance, aversion to harshness
or severity in any shape, became factors of great
importance in the life of the nation. Slowly but

THE NEW MILDNESS 85
surely they determined popular judgment about
the conclusions, or so-called 'laws,' of political
economy. Well-to-do communities, with large tax-
paying capacity, and assured of just and mild
government, can alone afford to indulge in the
luxury of applying moral, ethical, or sentimental
ideas fashionable at particular dates — but necessarily
' fluid ' and varying fundamentally every few years —
to serious business of legislation, to problems of
jurisprudence, or to economic relations. Such a
luxury came more and more within reach of pros
perous Britons between 1S46 and 1890. The new
pity told in a definite way against the ' dismal,'
' unsympathetic,' ' iron ' conclusions of laissez faire.
Savage sports, prize-fighting, duelling, the rigors
of the criminal code, imprisonment for debt, cruelty
to animals, had been mitigated or abolished by law
and general consent ; was it impossible to render
the iron law of supply and demand, or the remorse
less stringency of competition, more humane also?
Lord Bramwell, addressing the British Association
in 1888,* marvelled whether he was to hear next
'that Euclid's elements are "inhuman.'"' A fairly
numerous class were coming to the front predis
posed to so describe them.
Meanwhile thirty years of development in the
* Republished as pamphlet,' Economics;'. Socialism.' From
some points of view it does seem rather unfair that two sides
of a triangle should always be greater than the third. Mr.
Ruskin is, perhaps, the only economist who has dwelt on this.
Parliament seems to have done little or nothing for the ' really
deserving ' third sides of triangles, although few people, except

86 A MEMOIR OF LORD BRAMWELL
industrial England begotten of Free Trade had
provided abundant objects, problems, enigmas for
incoherent exercise of flaccid curiosity, sympathy,
pity. The early political economists, dealing with
phenomena of their epoch, seem always to have
postulated, as their ' wage- earning unit,' a healthy
as well as a free man. From the commencement
of the century great manufacturing centres, offering
promise of good wages and cheap food, had begun
to attract, not only the parish apprentices bred
under the old poor law, but thousands of healthy
country people, ignorant of physiological or sanitary
laws, to a town life. If not in the first, certainly in
the second or third generation, these new factory
and city workers showed signs of physical, and
especially nervous, deterioration. The waste heaps
and ' tailings ' of the great industrial machine, run
at ever-increasing speed after 1846, began to
present, among certain trades, unhealthy, feeble, and
degenerate human types, physically unfit to compete
in the struggle ; each successive generation genuinely
less and less able to bear nervous strain or physical
suffering. Misery, and a man's honest belief that
he is enduring misery, are no doubt largely relative.
Physical, nervous and mental capacity to endure
may deteriorate while material circumstances actually
improve. Those horrors of modern city life among
the very poor depicted by Charles Booth, G. R.

possibly Lord Wemyss and Lord Grimthorpe, would now
seriously defend the inhuman judgment pronounced upon them
by the followers of Euclid.

CONSCIENCE OF THE COMFORTABLE S7
Sims, Stead, Sherwell, would probably have neither
terrified nor greatly inconvenienced dwellers in the
London slums known to Defoe or painted by
Hogarth ; while to the working classes of 1780 the
food and clothing within reach of the very poorest
Londoners in 1880 would represent luxury. What
might be called ' the standard of discomfort ' had
been materially altered during the century, while
callousness — or capacity to endure other people's
sufferings with equanimity — had simultaneously
diminished among the 'better classes.' In his
address to the British Association, July, 1888, Lord
Bramwell himself confessed as much :
' . . . I once said to Mr. Newmarch, known to many of you
as a most able man, " I am a bit of a Socialist." He said,
" Yes ; every right-minded man has a tendency that way."
Our reasons were the same. It is impossible not to have a
doubt or misgiving, whether it is right that one man should
have in an hour as many pounds sterling as another has in a
year ; whether one man should suffer the extreme of misery
and privation, and another have every, not only necessity, but
superfluity. . . .'
A capriciously sensitive public conscience was
evolved among ' the rich,' half ashamed of the fact
that they could purchase about 30 per cent, more
comforts and luxuries with their money in 1880 than
in 1840, and becoming aware in a confused way that
the newly enfranchised thousands consisted largely
of physical wreckage of the competitive system.
By degrees one conception of the early political
economists came to be — in perfectly good faith —
exactly reversed : ' the ideal wage-earning unit ' of

SS A MEMOIR OF LORD BRAMWELL
our latter-day philanthropists and State Socialists
is a physically degenerate man, who also has
developed those dependent or servile tendencies
observed in low and defective types. Thus, a most
important gap gradually opened between what
must be called ' the biological standpoint ' of the
political economist and of the humanitarian. Many
economic axioms, true of healthy men and of free
men, cease to be true if physically degenerate or
artificially pauperized men are in question.
The revival in this country about the year 1880
of avowedly Socialistic theories, of which little had
been heard, except in J. S. Mill's 'Autobiography,'
after collapse of the Revolutionary movement on
the Continent and of Chartism here in 1848-49,
moulded opinion and political tactics, even as the
breechloader has transformed modern war. In
Great Britain those theories represent very largely
reaction of improved material conditions upon
popular beliefs and ideas — the revolt of the Con
tented, the intransigeance of the Good-natured.
Latter-day Socialism — taking its chance in clear
air and daylight side by side with free institutions
and Free Trade — has had little in common with
Continental Socialism or with Bryanism in the United
States. Some of its genteel clerical exponents,
as well as distinguished wobblers, such as Cliffe
Leslie, Jevons, Marshall, Toynbee, J. K. Ingram,
Ashley, were for a few years much encouraged by
Katheder homilies from German professors and by
the teaching of the grotesquely named ' Historical '
School in Germany, but modern British Socialism,

RECRUITS AND INSTRUCTORS 89
Collectivism, or ' Idealism,' seems to be a new and
distinct culture, thriving and multiplying best in a
quite new culture-broth, i.e., under mild government,
equal laws, and the general diffusion of wealth.
While Socialism from the first took little hold upon
the bulk of the working classes — acquiring increased
political influence, and conscious that they were
better able every year to take care of their own
interests — healthy and outdoor trades were early
differentiated in respect to the new tendencies from
unhealthy, sedentary, and indoor trades. Those
persons who from time to time affiliated themselves to
Socialist organizations were, as a rule, spontaneously
' selected ' types, undersized, weak, and physically
unsound. The town-bred worker, who had lost
most of his second teeth and was short-sighted and
bald at twenty, naturally found the ' present indus
trial system ' unsound, and heard gladly the latest
prize -prig from Baliol, duly sand -papered and
lacquered by 'The Master,' or the de'cadent poet-
philanthropist, who quoted the Sermon on the
Mount to prove that the competition of the big
man — with sound limbs, nerves, teeth, and eyes —
was ' immoral,' and that all the first man's misfor
tunes, physical or financial, were due to the hellish
greed of our brother the capitalist. Discreet per
meation went on, ' moderate Collectivism ' offering
something to everybody, but not everything to any
body. State education, increase in wages, general
comfort and prosperity, it was seen, still left much
wreckage, many misfits. The new ethical generali
zations about economic justice meanwhile provided

90 A MEMOIR OF LORD BRAMWELL
incoherent sanction and verification, at once secular
and theological for certain hates or whims, paltry
in substance, but formidable in the aggregate. As
has been suggested previously, wise legislation had
taken beforehand all revolutionary or irreconcilable
sting out of English political movements — perhaps,
rather, had made it impossible that disciples should
take the advice of apostles seriously. For some
reason or other, our latter-day Socialists skipped the
eighteenth century altogether and neglected to
revive the economic theories of the ' Mercantile
School ' (almost universally held by latter-day
American Socialists). From the start they relied
mainly upon the deductive method, creating a
de'cadent Ethical Providence, eager for the good of
' Labour ' or ' Humanity ' ; apparently a reincarna
tion, under another name, of the opportunist ' Deus '
of the corpus juris canomci, the ' Natural Law ' of
Locke and Rousseau, or 'the Invisible Hand'
(leading to a ' harmonious and beneficent natural
order of things ') of the physiocrats and of Adam
Smith. In the writings of the Historical School,
the new Motor-Providence appears as ' Economic
Morality.' Each group of two or three Socialists
gathered together seems to have evolved an inde
pendent and infallible fetich of its own, deductions
from his manifest likes and dislikes in regard to
economics and jurisprudence acquiring as much
authority as decretals of mediaeval canonists used
to have in past times.
In the United Kingdom the new Socialistic
tendencies first found a lodgment • in the upper

CONTEMPT FOR THE OLD TOOLS 91
story ' — that is to say, mainly among well-to-do but
not robust people, who had inherited comfortable
incomes, the savings of the newly-born commerce
and industry. With these people revolt against
political economy, and wandering preference for
' some kind of Socialism ' as an alternative, seems
to have been always more a question of tempera
ment than of intellectual conviction. Latter-day
Collectivism in this country has produced no con
structive literature, although ex post facto attempts
to justify Mr. Gladstone's Irish land legislation,
denunciations of competition, the institution of
private property, unrestricted liberty, and other
articles of faith long held sacred by Liberals,
appeared after 1S81. In that year irritating
assertions that the Irish Land Acts violated the
principles of political economy were best met
by the retort that ' the science ' itself was all
wrong ; everything went smoothly enough after
wards. It had not escaped latter-day pioneers of 'some
kind of State and municipal Socialism that even in
the fortunate absence of a written Constitution ideas
about equity and legal rights generally accepted in
this country were serious barriers in their way.
' The common law of England ' came to be described
as an invention of the Tory-landlord-capitalist party,
for the purpose of ' defending property against the
people.' Of old times Common Law had often been
a defence of the poor and helpless against rich,
powerful, and unscrupulous aggressors. Contracts
were strictly and religiously enforced by patriotic

92 A MEMOIR OF LORD BRAMWELL
and fearless men, who administered the Common
Law in despotic times, because the weak had
nothing better to rely upon than superstitious rever
ence for 'the letter' of agreements. In an age
when the poor and friendless had few rights or
protectors, ' contract ' was an advantage not to the
strong, but to the weak. The strong generally
got what they wanted without agreements or
contracts. Local and trade charters, deeds, constitutions,
treaties, copies of the court roll, are lawyers' gear,
binding strong men not to do injustice to weak men.
Superstitious and bigoted reverence for custom, for
legal ritual and formalism, those apparently mean
ingless ceremonies and observances still extant as
handed down from the ' dark ages,' partly had their
origin in a true instinct of self-preservation. They
became ' sacred ' in the eyes of the people, because
if they had been omitted, the steel-clad man with
the long sword, who couldn't read, and therefore
held documents in awe, would have seized the un
armed man's goods or thrown him into a dungeon,
while the King's Judges would have had no memorial
to go by. One very natural effect of the redistribu
tion of political power is to discredit ancient and
quasi-obsolete safeguards. When all classes were
learning to rely upon the franchise, the press, public
opinion, and other indirect methods for defence of
certain civil rights which nobody seemed likely to
interfere with, while a section of the class influenced
by ' Labour,' or Socialist- Radical leaders was coming
to trust more to violence, terrorism, threats — appeals

CONTRACT ' THE ENEMY 93
to the fears, interests or vanity of politicians — for
the enforcement of their demands, certain principles
underlying English Equity and Common Law,
notably in the matter of contracts, began to be
regarded by many as mere obstructions to ' social
justice.'

[ 94 ]

CHAPTER IV.
PLAIN WHIG PRINCIPLES.
Lord Bramwell's limited capacity for party politics — Takes
active share in business of Parliament after 1881 — Respect
for his opinion tempered by anxiety there — Letters from
eminent men to that effect — His fidelity to Liberalism:
rooted aversion to Toryism in Church and State — Letters
to him on former from good men, and others — His
political confession of faith in i860 — Situation at that
date — Reasons why he dreaded leaps in the dark —
Splendid fiction of intellectual Liberalism — The dynasty
of the professors : why real English people repudiated it
— Education Act cheapens culture — His almost isolated
loyalty to Liberal creed — Letters on ' Diminished Pro
duction ' — ' Fair Trade ' — First address to Liberty and
Property Defence League — Pamphlet ' Laissez Faire' —
Germs of his criticism of legislation in his judicial rulings.
The gradual metamorphosis of opinion in progress
among those busy millions, whose interest in politics
is small, whose momentum in politics is incalculable,
long escaped the notice of Lord Bramwell as well
as of other orthodox Liberals and political econo
mists in agreement with him. They were loath to
believe that the seductive wealth, comfort, and
prosperity created by Free Trade must by degrees
sap faith in the hard sayings of Free Trade, in the

THE LIMITS OF HIS CORDIALITY 95
wisdom of the irritatingly infallible men who won
it. It was into a new world peopled by strange
inhabitants that Lord Bramwell stepped, as legis
lator, pamphleteer, and letter -writer, down from
those serene heights whereon great and successful
lawyers affiliated to the best Liberal set were
welcome to recline in the early eighties. It is not
easy to think of him as a party politician at all.*
He was constitutionally unable to be cordial to a
humbug. Civil — yes ; but if one lacks capacity to
feel genuinely enthusiastic about a well-to-do
mediocrity struggling with the practical difficulties
of statesmanship, one can never be a thorough
going party man. From December, 1885, on, while
the Home Rule pestilence raged, one does indeed
see by Lord Bramwell's letters, exposing the flagrant
lawlessness of the Gladstonian-Parnellite position,
that he too was angrily and anxiously watching the
political plague-cart going through the deserted
streets. After taking his seat in the House of
Lords, he was often consulted by the leaders, made
speeches, and influenced legislation a good deal.
There he was regarded as standing legal conscience
to the Tory or Unionist Party. Tories could not
understand when Edmund Burke told them that a
vital portion of the old Tory creed was very good
Liberalism ; but Radicals, Socialists, Idealists, under
stood perfectly why Lord Bramwell called the new
Liberal creed very bad Toryism, and were wroth
* ' The Judges are, or ought to be, of a reserved and retired
character, and wholly unconnected with the political world.' —
Burke, Speech on ' CEconomical Reform,' p. 336, ed. 1803.

OiJ A MEMOIR OF LORD BRAMWELL
with him accordingly. In the Lords he was always
rather a terror to the leaders. Awkwardly honest,
making a fuss about injustices to people of no
political consequence whatever, his formidable know
ledge of law, his shrewdness, humour, grasp of
facts, gift of plain, convincing speech, took away
all chance of his becoming a harmless bore. Be
sides, he had the run of the Times.
Some of the following letters are complimentary
devices for keeping Lord Bramwell quiet.*
One of the then Opposition leaders, Mr. W. H.
Smith, in sending him a copy of the Corrupt
Practices Bill as amended in Committee, added :
' 3, Grosvenor Place,
'July 1 8, 1883.
' We, however, regard this Bill, as I have said, from an in
terested point of view, and we are " unlearned and ignorant
men." I should therefore be exceedingly grateful to you if
you would look at it both as a legislator and a Judge, and tell
me, in confidence, if you please, what you think of it as a
piece of workmanship and as a contribution to our laws. I
may remark that I may not give a poor man, if he is an elector,
five shillings, whatever his trouble may be, for fear it should
be held to be bribery ; but I may promise, if elected, to double
the salaries of Civil Servants at the cost of the State, or to take
away half the Duke of Westminster's interest in his property
in Westminster and give it to his tenants — my constituents —
without being guilty of any offence under the Bill. I think
* Chief Baron Pollock had written to him, February 20, 1859:
' . . .Of all the forms in which the labour of our office
presents itself, by far, out and out, the dullest and most dis
agreeable is " attending the House of Lords." I am not so
bad a listener as Alderson, but I dislike to sit all day like Mum
Chance, " saying nothing." '

'NOT SO BAD AS WE SEEM' 97
that there is now no effectual provision against an expenditure
for or against me by associations or individuals quite outside
the scheduled sum which may be spent. . . .'
On October 7, 1884, one of his most amiable
opponents, a statesman who always acquiesces
sombrely, but with charming equanimity, whenever
the British public throw his political prescriptions
out of window instead of swallowing them, wrote,
referring to their Times letters about the House
of Lords and distribution of seats :
' . . . Our controversy will soon settle itself, and it looks as
if the Government would give you the victory. So be it. I
often think of what old George III. said to somebody: "Sir,
politics are a trade for a rascal, and not for a gentleman." By
which I mean that if you sat in the House of Commons you
would see that intriguing combination plays no small part in
things. And Heaven forbid that I should say that all the
villainy is on one side ! Of course, in the House of Lords all
is pure and above-board. Many thanks to you for your good-
humoured letter. . . .'
An advanced land reformer wrote :
' February 13, 1885.
' . . . Many thanks for your most kind letter. I felt sure
you would be pleased at my entering the Cabinet, even though
you should fear the tendency of some of my views. ... I will
see about the Report of the Commons Preservation Society.
I have told Chamberlain and Dilke that I cannot support their
Restitution Bill ; indeed, that I do not see how it can be
framed. I have always been in favour of forbidding enclosures
of commons, except under the sanction of an Act — when due
consideration would be given for the public and the labouring
people — but I am unable to support a retrospective measure of
this kind.' 7

98 A MEMOIR OF LORD BRAMWELL
These views, of August 15, 1885, from a well-
known Q.C.,* might, mutatis mutandis, have been
re-written about the summer of 1897 :
' . . . I really have not, as some suppose, given up Parlia
ment out of pique. I considered the matter well before I
decided. ... As to public grounds, I may say that had my
party, or what was my party, not succeeded to office, I would
have fought tooth and nail to put them there ; but now that
they are there, I say, " Confound their politics, frustrate their
knavish tricks." I, for one, am wholly unfitted to expound
" Tory Democracy " to " Capable Citizens." I have nothing
but admiration for Lord Spencer ; and after spending ten years
in the House of Commons denouncing Parnell and all his
works, I cannot support " Maamtrasna compacts," nor those
who stigmatize representatives of the only loyal men in Ireland
as " Ulster reactionaries." Still less have I any sympathy
with Radical legislation by a Tory Government. There is
but small place for men like myself in the present House of
Commons, and in the next there will be still less. Not until
moderate and sensible men on both sides get together, and
send Lord Randolph to seek shelter under Chamberlain's
umbrella, will there be any hope for us. . . .'
On April 9, 1887, a most distinguished member
of the House of Lords wrote to him :
' . . . I assure you that I am very grateful to you for your
amendments on the Tithe Bill. They will be of great value to
me. I am not satisfied myself with the 5 per cent, deduction.
I fear it will bear hardly in some cases, though in others the
change will be worth that to the tithe-owner. I have rather
shrunk from the interference with freedom of contract! which
you mention, as you have done, on general principles. But I
fear some provision of the kind must be inserted.'
* J. R. Bulwer, Q.C., M.P. + See p. 351.

PRISONERS' EVIDENCE 99
This from a great officer of State :
' . . . The Minister in charge of the Bill would be foolish
indeed if he did notavail himself of such knowledge as yours.
I am not the Minister in question, but I will take care that he
has the opportunity, and I make no doubt he will be only too
well pleased to get such help. . . . You are a magistrate for
every county in England and Scotland, because " the Lords of
the Council " are at the head of every commission ; but before
acting you require to be sworn in . . . just as ordinary
magistrates, when they take out what they call their dedimus,
require to be sworn in before their brother justices. Do you
desire that this should be done ? . . .
' . . . I hope you have been well and strong during this long
vacation. The newspapers attributed to me that I had gone to
Bath to drink the waters, because I was there one night taking
back my boy to school, and, of course, I am thus credited with
a fit of the gout, which I never have had and hope never to
have. I am preparing an answer to you in Vagliano v. Bank of
England.' In the Times, December 15, 1883, anent the late
Mr. Justice Watkin Williams' erratic views about
' Statements by Prisoners,' Lord Bramwell had
written :
' . . . I quite agree with your leader that the defendant in a
criminal case ought to be able to give evidence if he wishes to
do so, on oath and subject to cross-examination. And I agree
that the time will come when it will be as much a matter of
astonishment that the law was once otherwise, as it now is
that the law formerly shut out the evidence of parties to civil
cases.' This principle was in Sir John Holker's Criminal
Code Bill of 1878, was recommended by the Criminal
Code Commissioners, and has found a place in Bills
introduced by Sir Hardinge Giffard, now Chancellor.
When in charge of his own 'Justices' Jurisdiction
7—2

100 A MEMOIR OF LORD BR AM WELL
Bill' in Committee, House of Lords, March 22, 1886
—passed there in 1884 and 1885 — Lord Bramwell
argued that a prisoner should be allowed to tender
himself as a witness, but, subject to the discretion
of the Court, should be cross-examined (as to
credit) like the prosecutor, or any other witness ;
for the jury had a right to know what sort of
character the prisoner-witness had. This provision,
he considered, would be bad for the guilty, good for
the innocent, etc.
This from an old opponent, one of the last letters
on public affairs he ever received, refers to an Irish
Local Government Bill : ' February 27, 1892.
I am very much obliged by your note. I think

point is purely technical. He says an American Legislature is
never actually a defendant before a Court. I believe that this
is true, although in many cases the acts of a Legislature have
been called in question and declared null and void. But there
is no power in an American Court to punish a Legislature
otherwise than by releasing all men from the obligation to
obey its decree. My point was that it was no more insulting
to (an Irish) County Council to make it actually defendant and
to pronounce its acts illegal, than to review the acts of a
Legislature in a suit between private parties and make an
order that these acts are void and should not be obeyed.
With all respect to Mr.  's learning, I think he is a pedant,
and cares more for a technicality than he does for the real
issue. . . .'
But political forms or party tactics never had any
real value or interest for Lord Bramwell, except in
so far as they touched certain beliefs to which he
held, without swerving, from early manhood till he

LIBERAL DISENCHANTMENT 101
died. He had given complete intellectual consent
to ' plain Whig principles.'
Historically the Whigs had Lord Bramwell's
gratitude ; they had carried the ark of the law
which he revered through the wilderness since 1688.
To be a Liberal was in the days of his vigorous youth*
and manhood the imperative fashion among ' men
of intellect,' and the present generation can hardly
realize how easy that was between 1828 and 1868.
If he ever hated anything, he hated Toryism, which
to him meant those special stupidities, tyrannies,
injustices and delusions which he and his great
predecessors on the Bench had been often called
upon to frustrate, which he himself combated in
later life with speech and pen. He had lived near
enough to the old times to retain the historic
suspicion that the Tories needed watching ; that
the judiciary might possibly be again required to
shield Englishmen from Toryism of the bad kind
in Church and State. Even after December, 1885,
when he came, in bitterness of spirit, to believe
that his trusted leaders and colleagues had proved
traitors to the cause, that the skirmishers had faced
about and were firing into their own ' supports,'
it was often a wrench and a pang to find himself
;:: ' . . . I remember well the passing of the Catholic Emanci
pation Act in 1829, and the intense pleasure it gave me. I
rejoiced heartily at the laws that removed the offensive and
irritating payment of tithes by those of one faith to the
ministers of another. I thought, and think, the disestablish
ment and disendowment of the Irish Church a most just and
righteous Act. . . .' — Lord Bramwell in Liberal Unionist,
August 1, 1888.

102 A MEMOIR OF LORD BRAMWELL

acting with Tory peers, squires, and parsons. The
cruellest thing Mr. Gladstone ever did was forcing
intellectual Liberal giants, who survived until 1886,
to admit to themselves that the Tory pigmies had
been the taller men, after all. No stronger proof of
ingrained fidelity to Liberalism could be imagined
than Lord Bramwell's confession* that, ' as an old
Liberal,' he ' would probably prefer to trust the
administration of the Crimes Act, 1887, to Sir
George Trevelyan . . .' rather than to some other
human beings named. In matters of religious belief,
too, Lord Bramwell had a sort of quarrel with
Toryism. Thirty or forty years ago people used to
talk of 'holding liberal views about religion.' What
are ' liberal views about religion ' ? Few could tell
in these days. Lord Bramwell held them. His
sympathies were with that band of enlightened and
advanced Liberals who, within the memory of man,
used to make joyous demonstrations of kid-gloved
Agnosticism at annual British Association meetings.
It was all long ago. For one thing, he disliked
going to church, a duty Judges have to perform
while on circuit. Although the most eenerous of
o o
men in money matters, he was irritated by the
assumption that a Judge, in virtue of his exalted
station, ought to put, nolens volens, a sovereign or
half a sovereign into the collection-plate. On the
Welsh Circuit once the plate was handed to him by
a smiling gentleman, with a gold-standard look in
his face ; suddenly waking from a reverie, the Baron
exclaimed, in a peremptory voice, 'Certainly not!'
* The Liberal Unionist, May 4, 1887.

A PLEA FOR BISHOP BUTLER 103
On another occasion, again on the Welsh Circuit, a
prisoner indicted for stealing fowls was asked whether
he was guilty or not guilty. ' That,' said the prisoner,
slowly and deliberately, ' is a question for Almighty
God, not for Bramwell.' The man was afterwards
found to be a lunatic, and was ' detained ' ; but it
shows somehow that the public suspected Baron
Bramwell's orthodoxy.
Writing to Lord Bramwell, October 18, 1877,
the late Lord Coleridge thus took pains to vindicate
Bishop Butler for his friend's admonition :
' . . . Now as to my great Bishop. I own to being dis
appointed, and, like you, I will not affect the false modesty of
saying that you may be right and I wrong ; because I don't
think so. Not the clergy and clericals alone feel as I do about
the greatness, depth of Butler's mind. Men so very unclerical
as Sir James Mackintosh, the Mills, father and son, Tyndall
and Huxley, put Butler as the very head of the religious
philosophers. These names are only specimens ; the list
might be multiplied indefinitely. It is, however, true that
there are minds such as yours, which do not take to him.
' I should, however, observe two things. First, that it
would make no difference in my judgment if, in this, that or
the other instance I thought the argument failed or was over
drawn. It is the total effect, the mass, the weight of the
whole book, the character of the man himself — his fairness, his
perfect fearlessness as to conclusions, his moderation in state
ment, and yet the deep inherent conviction, the suppressed
and reserved enthusiasm of the man — which moved me, and I
own I expected would have moved you. Then, his wonderful
suggestiveness. Take the chapter called, I think (for I have
given away my father's Butler, and have none here), " God's
Providence — A Scheme Imperfectly Understood." Then
think of who he was, a Bishop in George II. 's time ! And
then think of his saying that probably, if we knew more, we
should find that earthquakes, storms, famines, and the produc-

104 A MEMOLR OF LORD BRAMWELL
tion of men of genius, were all governed by as strict and absolute
laws as the most ordinary operations of Nature, or as the fall
ing of an apple to the ground. Do you really think that any,
save a very great man, could (all things considered) have
written that chapter ? Secondly, it is only fair to recollect
what he was about, and whom he was answering. The un
believers of Butler's day admitted, nay, contended for, a moral
and personal government of the universe. Of course he
doesn't set about to prove what all in his day admitted, and
on that assumption he goes on to show (I must say I think with
unequalled power and cogency) that the ordinary objections
to Christianity fail of force. I do not know whether you
would make the full admission which the Deists of Butler's
time made ; certainly many men would not. Of course to such
men Butler's argument is not addressed. You will not — it
would be unreasonable to expect you would — find in him
proofs or arguments for what in his day was a postulate. . . .
Nevertheless the " Analogy " may be, and I think is, well worth
reading for the wisdom and force of many parts of it, for the
incidental sayings and insight of it.
' Some people prefer the sermons. Very fine they are to my
taste. They show often that grave humour and irony which
in such a man as Butler is delightful. Do look at the one
on the government of the tongue. I prefer the " Analogy,"
however, as the greater and weightier work. Do look at
the letter to a lady on the possession of abbey lands, in the
appendix to Reeve's memoir of him, and just remind your
self that the writer was a Bishop. Then say whether it does
not show a remarkable freedom and candour of mind, besides
being very excellent sense and law. Let me also say that I
don't think him clever, in the sense in which I understand that
word. Jack Jervis* was the cleverest man I ever knew, and of
that sort of quality I don't think Butler had a grain. He is
always grave, severe, earnest. I like his style, too, but that is
because he seems to me never to care for style, but only to
exactly express his thoughts. I shan't convert you, I dare
say, but reverence for Butler is part of my very nature, and I
can't give it up.

Sir John Jervis, Chief Justice of the Common Pleas.

BUT NOT FOR ' COCKBURN' S STUFF' 105
' I don't at all want to shirk answering your implied ques
tion. Of ecclesiastical Christianity I believe probably as little
as you do, but I do believe with my whole soul in a moral
governor, and I do heartily believe that Jesus Christ was in
some sense — which I don't attempt to define — sent from God ;
so I can say without hypocrisy the second clause of the Creed.
How the human and the Divine met in Him I don't believe
any man can say, and I certainly don't affect to understand.
That Christianity will last, therefore, I believe and hope. I
suspect ecclesiastical Christianity will last much longer than you
think — much longer than is good for the world. . . .'
The two men were more in accord on the subject
of the blasphemy laws. Concerning a publisher's
case decided in the Court of Queen's Bench, Sep
tember, 1879, Lord Coleridge wrote :
' September 24, 1879.
' . . . Thank you . . . for the criticisms you pass on my
judgment, which are quite just, and imply more real compli
ment than any general praise. My own feeling on the matter
and its importance does not differ much from yours. But
these things struck me as of more importance when I was
young than they do now. I had, besides, at the Bar to argue
some difficult cases for which I was, or thought myself, obliged
to prepare by reading a good deal of Cockburn's scuff. His
judgment struck me as that of an ignorant, or at least super
ficial, though very clever, man, and as being all wrong.
Historically, too, the thing interests me more than perhaps it
does you. It reveals to one a curious state of belief and
society which has to a great extent passed away, but the
shadows of which are upon us still. . . .'
In a subsequent year (July 31, 1883) Lord Bram
well received this letter :
' . . . You are a Judge, and you are accustomed when on the
bench to throw your mind into the judicial attitude, both as to
facts and principles. I hope you will endeavour to deal with
yourself in the same way when you are brought face to face

106 A MEMOIR OF LORD BRAMWELL
with the problems of what you call theology. You need not
quote to me a passage from Sir W. Maxwell in which he
refers (probably) to the doings of the Inquisition in Spain or
in the Low Countries, for there is an older author than Kier,
who has put the matter into terser words — Lucretius : " Tan-
tum Religio potuit suadere malorum." The conclusion from
the great fact seems in your mind to be this : " Religions, or
religious dogmas, are the source of all evil." If you looked
into the question judicially, your conclusion would be very
different. It would probably be something like this : ' Men's
conduct has in all ages been determined fundamentally by their
beliefs. It has been bad in proportion as these beliefs have
been false. It has been good in proportion as these beliefs
have been true. Consequently the line of Lucretius, and the
sentiment of Kier, is equally true when it is made to face the
other way : " Tantum Religio potuit suadere bonorum."
' Just as false religion and false dogma have been the source
of tremendous evils, so have true religion and true dogma been
the source of all that is best and highest in human conduct and
in human institutions. This is as much a fact as the converse
proposition. It is the idlest of all occupations to rail against
beliefs. They will exist, and they will exert their power.
Even the purely negative belief that there is no true religion,
and no knowledge respecting it, is a belief which will have its
own tremendous power. I submit, therefore, that the duty of
all men is not to despise questions of belief, but to study
them, and, as far as may be, to solve them. As a matter of
fact, the fundamental institutions of our law are in all their moral
aspects more or less directly moulded on Christian belief. I
have never yet seen any other foundation even suggested which
has the same strength, or the same truth. ' Yours truly,
' Argyll.'
And again, August 4, 1883 :
1 . . . I know the fond imagination of many persons that
they can have religion with no theology, and the morals of
Christianity without any of its beliefs. There are already
plenty of indications what a mess they will make of it, besides

A CASE ADJOURNED, SINE DIE 107

the theoretical absurdity involved. You make too much of a
pope of my old friend Kier. I knew him pretty well : a culti
vated literary man, who knew as much about theology as you
told us you knew about astrology. Beyond the region of
historical anecdote he is no authority whatever. ' Yours truly,
' Argyll.'
On the other hand, the late Professor Huxley
wrote to him from Eastbourne about this time :
' . . . I trust before long to deal with that misguided person
to whom you refer in a manner which will satisfy your
benevolent aspirations on his behalf. He really is not worth
powder and shot ; but one must think of duty, and not of
pleasure . . . though I confess that the practice of that form
of virtue carries its own reward. I wonder if G. O. M. and
the rest are really so muddle-headed as not to be able to see
that poor old Noah's deluge is stated to have happened in a
certain manner, at a certain time, and in a certain place ; that
if their history is to be held true, they have to prove so much ;
that it really is of no use to show that a good deal of water
was spilt over the land in quite another manner, in quite a
different place, and at a totally different time ? How I wish
that Fact versus Noah could be pleaded before you, and that
I were counsel for Fact, and these fellows for Noah !
M'Lud's summing up would be a thing of joy. But, alas !
there sits upon the bench only that prodigious ass, the British
public, subscribing to Booth.
' With all good wishes,
' Ever yours very sincerely,
'T.H.Huxley.'
This from a man for whom Lord Bramwell had
profound respect :
' St. Giles House,
' Cranbourne, Salisbury,
' October 20, 1884.
' Dear Lord Bramwell,
' Let me acknowledge the receipt of a copy of the Sunday
Magazine, which you have been so good as to send me. I must

108 A MEMOIR OF LORD BRAMWELL
thank you for your kind sentiments and expressions towards
myself recorded therein. I have been, I think, much mis
understood. I have very decided opinions on the observance
of the Lord's Day, but I should not dream of enforcing them,
either by law or public speech. The grievance you refer to,
Sunday trains, etc., must be left to the judgment and principle
of every individual. I have never interfered, nor shall I inter
fere, except when labour is to be thrown on the working
people, and the day abstracted from repose and enjoyment, to
be one of toil and ministration to the pleasures of others. I
much fear that the reduction of the seventh day to the category
of the other six will bring on that issue, especially at a season
when trade is bad, and there is a vastly diminished demand for
labour. Then the man must work as they order, or not work
at all. You will, however, very soon carry your point in the
House of Lords, and also in the House of Commons. But
along with it many other things will be carried. I myself shall not
be long an opponent. My age is great ; infirmities are daily
increasing upon me.* I can understand many people saying,
" So much the better." I heartily wish you well.
' Yours truly,
' Shaftesbury.'
This on the other side of the same question :
' 524, Walnut Street,
' Philadelphia, U.S.A.,
'March 20, 1886.
' Dear Sir,
' Permit me to express to you the general feeling of
admiration with which we have received in this city the
synopsis of your speech made in the House of Lords on the
Sunday Opening Question.
' Here, as in the other leading cities of this country, our
academies of fine arts and our public libraries have been long
open to the public on that day. We have also in this city
halls of public intercourse for the discussion of scientific
questions open on that day under a State charter, and it is for
* He died April 13, 1886.

' VARIOUS REASONS' 109
the purpose of repeating in one of these your oration that I
ask you the favour to mail to me a copy of it entire.
' Certainly, if the House of Lords should ever cease the
high functions it has exercised through so many centuries, a
regret must ever follow that with it must also cease the official
advantage of such men as yourself to the country.
' I am, with great respect,
' (Signed) Charles S. Keyser.'
On January 16, 1886, a peer and ex-Judge wrote :
' . . . Why do I support the Church ? I once sat opposite
to the late Soapy Sam of Oxford and Winchester in a country
house, and he said he was " not in favour of anonymous
journalism." I had always been of a contrary conviction, and
ventured to say, "Well, but why?" A twinkle in his
humorous eye : " For various reasons." I won't quite evade
your question, then, but will answer it by asking another :
" Do you think religion a good thing for a nation, or a bad
one ?" If you ask yourself this, it is quite possible that while
doing so you may stumble over some of the reasons why I
would uphold the Church. . . .'
Dr. Benson, then Archbishop of Canterbury, wrote :
' Lambeth Palace,
'February 29, 1892.
' . . . I am most grateful to you for your kind interest in the
Clergy Discipline Bill, and your goodness in writing to me upon it.
' . . . I am thankful that a Judge who is held in such
honour should feel humanly that some " assaults " and some
" libels " are all but commendable. But this being so,
surely no Judge would give hard labour for such offences. If
a Recorder did, would not the Crown at once pardon ? . . .'
The then Bishop of Rochester (Thorold), en
closing a pamphlet of his on social questions, wrote :
' Selsdon Park, Croydon,
'October 15, 1888.
' . . . The Socialists have not welcomed it ; they describe
me as " a dull Tory with a large income." If the former part

110 A MEMOIR OF LORD BRAMWELL
of the sentence is no more correct than the latter, the criticism
is harmless. ' Faithfully yours,
' A. W. Roffen.'
Since Lord Bramwell, prior to his retirement in
1881, steadily declined to take any share in party
politics, since in his heart he despised the craft,
what little he ever wrote on that particular subject
is necessarily marred by ' limitations.' A very clever
man who cordially despises his fellow-men for playing
cricket, or for trying to catch trout with a fly, may
do very many things very well ; he certainly will
never be a successful cricketer or fly-fisher. One
advantage Lord Bramwell's determined ' absten
tion ' gave him — he could indulge in the luxury of
being direct, outspoken, or even quite wrong. About
non-party questions he could never afford to be
wrong. A long letter of his to the Morning Herald,
January 19, i860, signed ' L. L.,' is in the nature
of a political confession of faith, the bitter cry of
a Whig jurist troubled about the state of other
Whigs' souls. It says frankly what sundry Liberals
were thinking at that curious epoch, when Franchise
or ' Reform ' problems were forging their way to
the front, and Lord Palmerston still blocked the
way to political disturbance. Had they all been
equally frank, ' Adullamite ' dissension in March,
1866, would not have so taken the nation by
surprise. One may note Sir George Bramwell's prediction
about ' eight hours ' and ' minimum wage ' Bills,

INEXPEDIENCY OF THE INEVITABLE 111
restrictions on the use of machinery,"" demands for
imposing taxation of revenge on the rich minority,
with exemption for the ' working classes ' (the latter
prediction curiously verified by the Finance Act
of 1894). His trust in the people was tempered
by much prudence.
' The Parliament of the Working Classes : its
Measures and their Expediency.
' In the next session of Parliament propositions will be
made, more or less extensive, for lowering the qualifications
to vote for members of the House of Commons, in order to
admit to a greater extent what are called the " working
classes " — that is, those who live on wages . . . What are
their wishes, how would the " working classes " legislate if
they had the power ? Now, there is not one in a thousand of
them but would say that they do not get the wages they ought
to get, and that they suffer unjustly from the tyranny of
capital. It is in vain to say such an opinion is nonsense, that
there is no " ought " or " unjust " in the matter, and that there
is no proper connection between any quantity of work and any
quantity of pay other than that which is formed where labour
and capital are left to adjust their own terms. Elementary
and obvious as this may be, it is not the opinion of the
" working classes." They think, not that 5s. 6d. a day for
ten hours' work is less than a carpenter ought to get —
probably the majority of the working classes think it enough
for him — but the carpenter thinks he ought to have more ; the
dock-labourer thinks he ought to have more than 2s. 6d. a
day ; and so every working man thinks he ought to have more,
and the whole " working classes " think the capitalist, by some
ingenious and wicked contrivance, is depriving them of their
rights. ' This opinion they entertain, and this opinion they would
* Demanded by the Amalgamated Society of Engineers,
understood to be the most enlightened body of trade unionists
in the kingdom, thirty-seven years afterwards.

112 A MEMOIR OF LORD BRAMWELL
act on. . . . Let us examine what steps they probably would
take. ' They might begin with the only harmless, possibly bene
ficial, piece of legislation the subject would bear — I mean with
measures for facilitating the establishment and working of co
operative societies, benefit societies, building societies, money
clubs, and similar matters. Summary proceedings would be
permitted, summary remedies, with probably savage penalties
for frauds by managers and others. No great harm would
result from this. Like other laws of a similar description,
they would not be enforced, and in time would be set right,
having done but little mischief meanwhile. But further
measures would be taken. . . .'
The allusion to that extinct type, the dock-labourer
at 2s. 6d. a day (further on 'at 14s. a week'), re
minds one of the immense rise in the wage of ' mere
bodily strength' since i860. Lord Bramwell could
not foresee that, in proportion as their grievances
were redressed and the franchise extended to them,
trade unionists would come to rely more upon
threats, violence, and terrorism than upon legis
lative sanction, because he was quite unable to
imagine that 'the authorities,' Secretaries of State
and magistrates, would ever come to connive at
such extra-legal methods of enforcing trade union
demands. A rather minute forecast of probable
legislation, giving to trade union rules, regulations,
and restrictions the force of law, is omitted.
"... But the mischief,' he continues, ' would not stop
there. Every intelligent person, not blinded by a supposed
self-interest, knows that the enforcement of such regulations
would be most disastrous, and especially so to the " working
classes " themselves. But they, instead of being taught
thereby to remedy, would be stimulated to increase the

EIGHT HOURS AND OTHER ACTS 113
mischief. They would suppose that some cunning was re
sorted to by the capitalist, some ingenious device, some shift
to make the loss fall on them. The masters would still — at
least, some of them — have the luxurious house and carriage
which are so much envied, and it would be supposed that their
unjust gains still continued, and that further legislation must
be resorted to. Even if one could suppose that the " working
classes " had bettered themselves by their previous legislation,
what reason is there to suppose they would remain content ?
If this generation thinks 5s. 6d. ought to be paid for nine
hours, why should not the next think it ought to be paid for
eight ? Whether, then, we look on their efforts as successful
or (as they certainly would be) unsuccessful, we may be sure
that they would proceed, if they had the power, to further
measures. ' They would now probably be of a direct character. Those
I have supposed would be indirect attempts to obtain a larger
share of the joint earnings of capital and labour by an increase
of wages. They now would claim to share the profits. The
capitalist would still be permitted to carry on his trade as
builder, cotton-spinner, ironmaster, or other, but the " working
classes " would claim to share his profits. They would say
that they, as much as he, earned what was earned ; that he
got more than he ought, and they less than they ought, and
that, therefore, there ought to be a change. Of course, I
cannot point out how they would set about this. Perhaps
somewhat on the principle of the Income Tax Acts. They
would appoint committees of their body, or public officers, to
ascertain the average profits of the last three years, and wages
would have to be paid accordingly, with a provision that there
should be a minimum rate. Other schemes would be adopted.
For instance, that the " working classes " should be the manu
facturers or tradesmen, and the capitalist a creditor on the
profits. ' Another subject of their enlightened jurisprudence would
be machinery. What the " working classes " have thought on
this matter and what they have done are well known. Is there
any reason to suppose their opinions have changed ? None.
8

114 A MEMOIR OF LORD BRAMWELL
Witness the conduct last year of the shoemakers, when the
sewing machine was introduced. There is a strong prima facie
case against a machine which throws a man out of work — so
strong that the man himself never can get over it, though to
every reflecting and impartial person the ultimate benefit to the
public and the man himself is undoubted.
' So much for this kind of legislation. The same views
would influence them on other subjects. Taxes on articles
they consume would be repealed, and revenue raised by direct
taxation ; and, if we suppose them to go no further than their
noisy apostle in favour of direct taxation, gin, beer, and
tobacco, with perhaps tea and coffee, would be emancipated,
and a duty put on property of all kinds — land, railways, funds,
and movables. How far that is desirable is another question.
I point it out as a consequence of the supremacy of the
"working classes." I believe this, for the same reasons I
have mentioned before. Ask the "working classes;" they
will tell you it is a shame a poor man's beer should be taxed,
while a rich man, who does nothing, can spend ^20,000 a year,
and keep twenty servants, and ride in carriages. It is idle
to say this proceeds on false assumptions and false reason
ings. I say it is the opinion they now hold and would act
upon. ' But there would be further subjects of legislation. All
measures of a levelling and equalizing character would recom
mend themselves to the " working classes." Of course, the
" law of primogeniture " would be abolished ; most probably
the power of preferring one child by will or settlement would
be taken away ; and the power of tying up landed or other
property for any length of time, by settlements for the benefit
of children and others, would follow. How far this would be
beneficial or mischievous I do not say. I point it out as a
consequence. It is a consequence which might be followed by
others. The extinction of a territorial aristocracy, of course,
might involve that of the House of Peers as at present con
stituted. It is not impossible to contemplate even an agrarian
law and a redistribution of property. I know that it is dis
cussed among the " working classes " whether the State has a

OPINIONS OF THE OPINIO NLESS 115
right to alienate land and grant it for ever, a question, of
course, determined by those who do not, against those who do,
possess it.
He then finds that he has stumbled up against
the difficulty — besetting those who would base the
franchise on ' intelligence ' — of demonstrating that
one class, which you don't know much about, is
inferior in political capacity to another class, of
whose intelligence you have a very poor opinion.
' . . . It is said if the working classes would act in this way,
why do not the /"io householders? It is asked, are the latter
political economists ? I say, not necessarily so, any more than
the Protectionist Duke who is a £"1,000 householder. They
may all reason equally badly on the matter. But the difference
is this, neither the £10 nor the ,£"1,000 householder thinks
there " ought " to be the changes I have mentioned. Neither
may be able to give a good reason for his opinion, though it is
a right one. Nay, it may be he has no opinion properly so
called, but still has the sense to follow that man who is in the
right. At all events, he has no supposed self-interest to make
him take a wrong opinion. Those Protectionists who voted
with Sir Robert Peel for the repeal of the Corn Laws did not
change their opinion, but, being accustomed to rely upon his
opinion, followed him in spite of the change. ... Of course,
those who think such measures as I have suggested desirable
will be at once for universal suffrage as the most likely to
bring them about. There may be some who think them un
desirable, who nevertheless would give the suffrage. They
say that the influence of intelligence and property would still
prevail, and that a House of Commons returned by universal
suffrage would not be governed in its measures by the opinions
of the working classes. No doubt that might be, but why it
should I cannot see. The number of those who in this country
live on wages far exceeds that of every other class, and why
should not the members they choose represent their opinions ?
Still, though it might, it might not be ; then why run the risk ?
8—2

116 A MEMOIR OF LORD BRAMWELL
To this, some people answer, " Every man has a right," etc.
Such folly is barely worth an answer, but it may be given
thus : " Will it be a good thing they should have the franchise ?
If so, give it them, whether there is an abstract right to it or
not. Will it be a bad thing ? If so, refuse it, for you never
can be bound to do evil and cause mischief." I repeat, then,
if there is a risk, why run it ? But, then, many say we do not
propose universal suffrage ; we propose household suffrage, or
£5 or £6 house suffrage. But I say again, if this is to let in
the working classes, it is to let in mischievous opinions ; and
why run the risk of them ? What good will it do ? It is
obvious that one reduction of the franchise facilitates a further
reduction. It is certain that the ^"10 householder has more
sympathy with the £5 than he has with the £50, and the £5
with universal suffrage than with a qualification. The inferior
shopkeeper sympathizes with the workman rather than with
the capitalist. He is, in truth, a workman himself ; without
capital he works at retailing. Those, therefore, who are pre
pared for any reduction of the franchise must be prepared for
the abolition of all qualification, or for a more difficult struggle
for its maintenance than is now necessary to prevent a reduc
tion.' ' Abstract right to the franchise ' was much dis
cussed at the time and later, an abstract right to
withhold the franchise being, by the way, always
taken for granted. He did not foresee the up
rising of the Conservative working man, the whole
sale conversion of ' the inferior shopkeeper ' to
Conservatism, from about 1870 onwards, nor the
list to port given by ' some kind of Socialism ' after
1880. For him the vital question was, How would
extension of the franchise affect the House of
Commons ? Mental concentration on his own pro
fessional work, long years spent in trying to get
at the heart of English law, at the best working

WHO ARE THE WORKING CLASSES? 117
plan for diminishing injustice (not in the civilized
world, but in the matter of A v. B), naturally led
him to anticipate that the new mischievous tendencies
would take set legislative shape. He asks himself
at once what would be the legal effect on A or B.
' A plausible argument is put forward, with which I will now
deal. It is said that no class ought to be excluded from
Parliament ; that the voice of every class ought to be heard
there ; that all ought to be represented there, and that the
" working classes " are not. Never was there a phrase of
which a more mischievous, perhaps dishonest, use has been
made than there has been of this invidious and inaccurate
expression, " working classes " — inaccurate, because it means
to exclude all who do not receive wages, and invidious because
it supposes that they only work. It supposes a homogeneous
body, so that what is true of any of its constituents is true of
all. Nothing can be more erroneous. The only thing that
those whom it is supposed to describe have in common is that
they are paid by wages. There is nothing else in common
between the farm-labourer, at from 8s. to ios. or 12s. a week,
and the artist who paints the beautiful fabrics of the potteries.
There is nothing else in common between the dock-labourer at
14s. a week, who is paid for nothing but mere bodily strength,
and the skilled locomotive driver, who must possess character,
firmness, and a knowledge of the complex machine he governs,
and be able, perhaps, at a pinch to repair it. There is nothing
else in common between the man who carries a hod and the
intelligent and skilled workman who can build from drawings.
To lower the franchise and admit the better sort of these men
is not to make them representatives of the others, or enable
their voices to be heard. The hewers of wood and drawers of
water would still be outside the " pale of the constitution " (I
believe that is the style). Drop the phrase " working classes,"
and say honestly I propose to lower the franchise, and the
proposition is intelligible.
' . . . A change in the constituency, to do good, must im
prove the representatives. They can only be improved in one

118 A MEMOIR OF LORD BRAMWELL
or both of two ways, viz., either by being made more honest,
or more able, or both. Now, if presumably a man's intelli
gence and information are in proportion to his education, and
his education in proportion to his position, then presumably
the lower the position the less the intelligence and information.
How lowering the franchise and diluting the intelligence and
information of the electors can add to the ability of the elected
is hard to see. Then as to their honesty. If it could be
pretended that class legislation prevailed, that the lower orders
were unfairly dealt with, then indeed would any change be
justifiable. But there is no pretence for such a change. Since
the Reform Act we have certainly had, in this respect, a self-
denying Parliament. It is all very well for a demagogue,
incapable of existing without the noisy applause he has been
used to, to bawl about profligate expenditure and profligate
wars, and shout for the remission of taxes on noxious stimu
lants ; but those are not the opinions of the intelligent and
reflecting part of the community. There is not a measure
which the good sense of this country favours which is not
certain to become law. . . .'
After denying that electors already enfranchised
desired further ' reform,' and deploring the weakness
and insincerity of the average opportunist politician,
or M.P., Whig or Tory, Lord Bramwell winds up :
' . . . For my own part, I sincerely trust that if the
franchise is lowered, it may be as little as possible, and I
firmly believe that if those who will have to vote on it vote
according to their convictions, a measure which I believe to be
the first step to an unmitigated democracy would be avoided.
< L. L.'
Thus did extension of the franchise towards
' democracy ' and ' universal suffrage ' strike a con
scientious intellectual Liberal in i860, when ' De
mocracy ' had a specially bad name in consequence
of events of 1848-49 on the Continent, the collapse

WHY NOTHING HAPPENED 119
of Republicanism in France, and such scandals as
the Brooks - Sumner affair in the United States
Senate. Should the House of Commons happen
to be ruined, must not the nation be ruined too ?
Correlation of the sciences in later times has sug
gested consolations. A free people, like a living
organism, instantly begins to throw out protective
political substances — horny growths, callous or
thickened cuticle, so to speak — when wounded.
Compensations were invented to neutralize discredit
able consequences for M.P.'s themselves of lowering
the franchise in 1832, '68 and '84. The nation,
objecting strongly to be 'ruined,' fixed on a new
political centre of gravity, and, pari passu, developed
extra House of Commons methods of expressing
its will. Deterioration, demoralization of the elective
chamber, was, to Baron Bramwell's mind, the penalty
for ' letting in mischievous opinions.' The half-
truth, that mischievous opinions are more mischievous
out of Parliament than in it, was one of those breezy
generalizations which he always distrusted. He did
not foresee that advocates of ' mischievous opinions '
would lose one of their strongest arguments when
it was no longer possible to say to M.P.'s, 'If the
working man only had the vote, such and such
measures would be passed quick enough.' It is
arguable that a Home Rule Bill would quietly
have become law, say about December, 1890, had
the Franchise Acts of 1868 and 1884 never been
extended to Ireland. Again, it would have been
morally impossible to disprove assertions that the
entire working- classes were enthusiastic for Local

120 A MEMOIR OF LORD BRAMWELL
Veto had they not possessed the franchise in recent
years. Apparently Lord Bramwell did not recognize
as fully as Burke did* the importance of ensuring
adequate representation for prejudices and unreason
ing instincts. An elective system which only re
presented intellect, wisdom, experience — the Sunday-
best self of the nation — would be like beer brewed
without malt or 'ferment.' Hop beer has always
been much misunderstood. Practical service the
Tories rendered for a century by loyally embodying
in the nation's policy the nation's incomparable
prejudices. Had the younger Pitt survived, he
would probably have been punished by his party
for his dangerous leaning to philosophic culture, a
defect which proved fatal to Guizot, Castelar, the
two Adamses, Karl Schurz, David Wells, and others
in America. One sees from Lord Bramwell's letter
how admission of first the middle and then the
working class had been regarded in all sincerity
even by many thoughtful Liberals as a favour, a
concession, certainly a generous, perhaps a rash
act. Demands for Parliamentary reform after 1832
largely represented a longing among the governors
for solidarity in the governing mechanism. It was
the responsible men who for their own sakes wanted
responsibility spread over as large a surface as
possible. Never having gone through the political
mill himself, Lord Bramwell forgot how the wretched
man who governs yearns to find someone else to
share blame for the mistakes he knows he is going
to commit. Parliamentary reform in 1832 and after
* ' Reflections,' 4th edition, pp. 129, 143.

EXCEPT THE UNEXPECTED 121

was but partly a case of victors dispossessing
vanquished, of aggressive reformers snatching power
from hands clenched to retain it. The grip of the
' privileged ruling class ' upon power had begun to
slightly relax even before 1832. What happened
between then and 1884 was very much a case of
new voters called in to help to rule by a class which
was steadily losing not only the art, but the ambi
tion, the sentiment of leadership. Lord Palmerston
seems to have refused to the last to admit that the
system inherited from 1688, to which Lecky pays
a fine tribute in Chap. II., Vol. I., of his ' England
in the Eighteenth Century,' had indeed been ended
by the Act of 1832 abolishing nomination boroughs,
on which the working of the system mainly de
pended ; there were Calne, Tiverton, Coppock and
the prophets still. But the influence of ' the govern
ing families ' had been, after all, territorial. No
sure method was ever devised (although many were
tried) for exercising ' influence ' over the large towns,
whose vast populations, products of Free Trade, were
becoming in i860 a factor in politics impossible to
neglect. Besides, the task of carrying on the Queen's
Government grew heavier and heavier yearly. The
British Empire was a tiny thing in 1830 compared
to what it was and promised to become in i860.
No wonder those incomparable, extra-human repre
sentatives of privilege depicted in the H. B. sketches
were secretly anxious to find vulgar partners ready
to share responsibility. Democracy is for rulers
not the difficult — it is the easiest — form of govern
ment. When they make mistakes they can say,

122 A MEMOIR OF LORD BRAMWELL
' The people tempted us, and we did eat ' ; or, in
official language, that they had bowed to the evident
sense of the nation. The really nervous, bewildered,
anxious man is the despot who never gets mandates
from anybody. Since already in i860 it was plainly
impossible, even if desirable, to rule the working
classes, better get them to put their names on the
back of the promissory note along with the swells.
It was a weak man's argument ; but, like the aboli
tion of patronage in the Civil Service, dissemination
of responsibility in 1868 and 1884 has saved Ministers
and statesmen a great deal of trouble, while salaries
have not been affected.
The letter of i860 shows a certain distrust of his
own judgment (a different thing from modesty in
assertion) which few of Lord Bramwell's later writings
show. The subtle question of what would happen
when that superb fiction, Parliamentary government,
reached ultimate conclusions was not his special
question. Neither busy barristers nor professional
statesmen easily find out the very truth about classes
born, living, dying in the more remote regions of
the social continent. What did the ' working classes '
really want, hope, hate, fear, believe ? Often distance
lent disenchantment to the view. Statesmen and
leading politicians seek the answers to such ques
tions mainly from ' go-betweens,' • agents deemed
capable of getting to really ' know ' the working
man because nobody knows them by sight. Political
newspaper editors and leader-writers, selected because
possessing political instinct, do in time acquire the
art of ' mastering their brief in the hansom ' like a

AN ARDENT POLITICAL ECONOMIST 123
busy Q.C., and in regard to what the working
classes think, are not, perhaps, so untrustworthy as
'labour' leaders and M.P.'s, but are less in actual
contact with the masses than even Cabinet Ministers.
The ' go-between ' may be biassed, and he may be
stupid. Often he takes to drink. The unavoidable
but often misleading prominence given by the press
to 'public meetings,' the difficulty for newspaper
readers of deciding whether they were genuine or
fraudulent expressions of opinion, add elements of
miscalculation. Clever men are apt to evolve
opinions about less clever men from their own
imaginations. After the 1874 election Lord Bram
well probably thought that in i860 he had done
something of the sort ; therefore he scarcely ever
pronounced judgment on purely party politics
again. Although no politician, he may fairly be classed
as one of that phalanx of intellectual Liberals who
flourished in the early and middle part of the
Victorian era. He never had the jargon of the
distinguished fraternity at his fingers' ends ; he
never could pose ; took great interest in the debates
of the Political Economy Club, to which he was
elected in 1855 ; always very sound in the faith —
so orthodox, quand meme, that he never failed to
say a word in season for that queer old ante-
Darwinian, anti-biological delusion of Mill's about
prudential checks on population as a remedy for
poverty and social dangers — he was first welcomed
there as a busy Q.C. who condescends to abstract
controversy out of working hours. If not flexible

124 A MEMOIR OF LORD BRAMWELL
enough for a political economist, he was exceed
ingly sure always about English law, which was
respectable. That decay of ' authority in matters
of opinion ' which vexed him in his later years —
often the reason why he broke silence on public
questions — had to some extent been helped by what
was called (because there was no English word for
it) ' doctrinaire ' bias among intellectual Whigs and
Radicals. Always very mortal, they seem to have
unconsciously taken for granted the permanent exist
ence of three classes : (i) Privileged, (2) enlightened,
(3) inferior. The former consisted of landowners
or aristocrats who represented privilege, traditional
claims to govern, most irrational in the view of
people who had not sufficiently studied the origin
of institutions from the biological side to under
stand the genesis of ' privilege ' ; in any case,
invalid, unreasonable nowadays, because opposed
to the spirit of the age.
The second, or enlightened, class consisted, in
the eyes of philosophic Liberals, of themselves
and their friends. The third, or inferiors, com
prised the shopkeeping and working classes, the
populace, the ignorant peasantry, objects for just
rule, philanthropic amelioration, prudent experi
ment, gradual enfranchisement. Out of pure
gratitude the third would surely always vote or
shout for the second class? What like, all the
time, are the English people ? No Irishman
ever knows ; no Scotsman ever cares ; no English
party politician ever understands, until he is finally
turned out of office. The man of intellect, the quite

' MEN OF LIGHTS OTHERS ' OF LEADING ' 125
perfect member of the Atheneeum, has a legendary
place of his own, even in the era of force, in the
age of chivalry, when the knight is the hero of the
piece. In myth and romance one sees the student,
the thinker, the clerk, often getting the better of
the strong man, the man with the sword. But the
thinker is not, after all, the people's ideal leader.
In questions of government and leadership warp
and weft of the old English stuff are constantly
showing through that precious embroidery super
imposed by the wise intellectual men. Mr. Joseph
Cowen confesses that his constituents do not want
political philosophy from him in 1883 ; they prefer
to talk about that Life Guardsman who hewed off
Egyptian heads with his sabre at Khasassin — ' a
Newcastle man, too.' On Jubilee Day the hoarse
spontaneous roar is for the sunburnt man with the
empty sleeve, for the men with medals, the real men
they opine.
Mighty were the services rendered to humanity
by the intellectual Liberal. Without him those
same Jubilee celebrations would have been im
possible. On the other hand, his yoke was a narrow
one for the English people to bear, and if there was
a revolt, to afflict and confound such Liberals as
Lord Bramwell, much can be forgiven to a genera
tion whose fathers had been ordered to believe that
Nassau Senior could talk wisely about everything,
that Henry Reeve was familiar with all those subjects
which Nassau Senior overlooked, and that H. T.
Buckle's ' History of Civilization ' was at once the
Bible, Talmud, Koran, and Rig Veda of enlightened

126 A MEMOIR OF LORD BRAMWELL
Liberalism.* Insurrection against Buckle was all
the more potent because long ' driven under ground.'
For twenty-five years Buckle's influence dominated
'¦¦¦ March 23, 1858, Chief Baron Pollock wrote to Lord
Bramwell :
' . . . Have you heard of Buckle's lecture ? have you read
his book ? do you believe in statistics ? I heard his lecture
vicariously. . . . My wife, four of my daughters, and a grand
daughter, besides Fred . . . my eldest son, were there, and I
have had accounts from them all. . . . His philosophy
(abundantly set out in his book) is this, that the conclusion to
be drawn from all statistics yielding results so similar (which
no doubt is the case) is, that some principles are at work which
necessarily produce these consequences . . .' etc. Matthew
Arnold's captious sneers at the middle class, his attempt to
acclimatize amongst us the word " Philistinism " — an involved
Teutonic sarcasm, necessitating most complicated gearing of
levers, cog-wheels, etc., before it will make one smile — show
that the intellectual Liberal in this country had a grudge against
the real people, just as "the professors" had in Germany.
That' discontent with Mr. Gladstone which culminated in the
Liberal Unionist Grand Remonstrance was partly (doubtless
unconsciously) due to Mr. Gladstone's disloyalty in appealing
from the genius of the Athenaeum Club, first to the Noncon
formists, and then to the masses. In combating pretensions
of privilege, birth, land or wealth, philosophic Liberals were not
asking for " mob rule," but virtually asserting an alternative
claim on their own behalf, on behalf of " enlightenment,"
believing that the aristocracy of intellect not only ought to
rule, but would be accepted as rulers ; the which between
1832 and 1872 seemed likely. Few Liberals then foresaw that,
while agricultural depression must reduce the privileged class
to a condition of philosophic apathy, alleviated by dealing at
the Stores, general spread of education would gradually but
surely do away with the once obvious superiority of the man of
intellect, ultimately leaving his pretensions baseless and rather

HIS OWN STANDARD GAUGE 127

the kind of people who write leading articles in
Liberal newspapers.
Lord Bramwell looked at what was going on
within the Liberal party (in 1882 still the nation's
chief law-making organism) from a point of view
peculiar to himself. Behind his shrewd, blunt,
humorous criticisms was dogged resolve to apply
to every new legislative or administrative act trench
ing on individual rights the same principles of equity,
measured expediency, and workaday logic, which
guided him on the bench. He cared about political
economy a good deal, about justice (as he interpreted
it) far more. With him expediency — in politics
associated with salary-getting and salary-holding —
meant the deliberate judgment of many generations
of experienced men trained to weigh evidence.
Already an old man, he had to pick up the threads
of a controversy seemingly decided for ' good and
all ' in his youth, to restate conventional truisms.
It had given him an ' awful shock,' no doubt,* to
ridiculous. British aristocracy, after all, did represent in a
shadowy way historic or legendary claims to lead, based
originally on what was in lawless times the most valid title of
all — force. The highly-educated politician is found to repre
sent a very shaky title to pre-eminence when once "the popu
lace," deprived of certain illusions by universal education,
cheap books and newspapers, begin to suspect, with all the
complacency of the half-taught, that there is nothing in intel
lectual superiority, after all.'
* Addressing the British Association, July, 1888, he said :
' At a meeting of this association nine years ago, it was said,
not that political economy was dead, but that it had never lived
— that there never was such a science. This was an awful shock

128 A MEMOIR OF LORD BRAMWELL
hear that not only was the reign of law a myth, but
that political economy had never lived. The main
premises of the ' orthodox ' school were, to his mind,
firmly established. Living not m vacuo, not on
Mr. Herbert Spencer's now completely deserted
'desert island,' not in Rousseau's 'natural state,'
but here in England in a community of free citizens,
inheritors of certain rights (acquired and law-clinched,
not 'natural'), fairly intelligent, of 'full age,' quite
capable of looking after their own interests, he saw
that vastly complicated relations between all classes
in his day were founded mainly on bargain, on
voluntary contracts, each of which is an assertion
by the persons concerned of their indefeasible right
to vary or refuse the conditions of the proposed
baro-ain. No slave ever enters into contracts ;
freemen alone do. Sometimes disputes arise later
on about the terms or fulfilment of voluntary con
tracts. To prevent men fighting about such matters,
the enforcing of bargains or contracts was thrown
upon the tribunals. Something of all that Lord
Bramwell may be said to have taken for granted
without attributing to him speculative or ' implied '
to me, who for nearly two-thirds of a century have been trying
to learn something about it, and who have considered, and do
consider, that there is no branch of knowledge more important
than that of the truths of political economy. An argument
attracted a good deal of notice, but, for my own part, I confess
I never understood it. It was said that political economy
was not an independent science, but a branch of one more
extensive. It seemed to me as bad an argument as one which
should say that ornithology was no science because it was only
a part of natural history.'

OVER-PRODUCTION' ABSURDITY 129

opinions merely because his opponents happened to
hold speculative opinions the other way. Of certain
deductions made by the orthodox economists, he
had never seen any disproof. He had a wholesome
British dislike to synthesis-hunting and to meta
physical blind alleys ; no new ' message ' of his own
to deliver, little to say about controverted questions
of the science.*
* In November, 1879, while still Lord Justice of Appeal, he
conscientiously, and in all good faith, took part in what might
be called a puzzle-competition about ' over-production,' and
the suggested quack remedy, ' diminished production.' This
controversy (like those about the exclusion of foreign prison-
made ice-cream, and the wickedness of dealing in ' grain
futures ') concerned political astrology rather than political
economy. It remains one of the curiosities of British indus
trial history, a by-product of that confusion of ideas, that
bemuddled unrest and feverish (or Shaw-Lefevreish) temper
which distinguish the years of economic anarchy between 1870
and 1890 — when 'the political economy of our youth' was
discredited, before ' some kind of Socialism ' had completely
fascinated our miscellaneous doubters, dreamers, and Mar
quises. As with Mr. George Potter's bi-metallist agitation
and the Fair Trade movement, a few years of good trade and
high wages smothered the ' over-production ' heresy. German
Social Democrats talk about it to this day. Mr. A. Mac-
donald, M.P., its Adam Smith, made disciples in 1879 among
Scottish colliers, who on his advice threw away weekly wages,
perhaps getting sense in exchange. Mr. Frederic Harrison
probably gave more consideration to this problem than it was
worth ; Mr. John Morley, ' smiling, put the question by ' at
some length, and Mr. Henry Crompton — interested and hope
ful about trade union congresses, conciliation and arbitration
schemes in those days — circulated one of Lord Bramwell's
letters, ' so that workmen might adopt clearer views and wise
action on this important matter.' 9

130 A MEMOIR OF LORD BRAMWELL
Concerning a delusion of the period (1881-83)
he wrote to the Times :
' Unless all trade is fair, these words [Fair Trade] import
that there is some which is, and some which is not — some
which is unfair. . . . When a nation buys of another which
will not buy in return, is the selling nation ' unfair ' ? I sup
pose a butcher who bought bread of a baker, who bought no
meat of the butcher, would have no less right to complain of
the baker's trading. But has the nation, or butcher, any right
to complain ? Suppose we complained of the Americans and
French that they sold but would not buy, and that it was
unfair, might they not justly say that they had broken no
promise, no agreement, falsified no expectation, and that the
word ' unfair ' was unjust to them ; that we were to take notice
that they would continue to deal in the same way, and that,
being warned, it would be idle for us to complain in future of
Lord Bramwell denounced the ' diminished production '
absurdity, just as he would have done had Mr. A. Mac-
donald, M.P., demanded that all paupers should be buried in
Turkey-red cotton shrouds, in order to raise West Scottish
factory hands' wages; he wrote also (November 25, 1879) to
the Scotsman, and Mr. A. Macdonald replied at great length in
his customary style. These papers are scarcely worth reprint
ing. Many people are as foolish in 1898 as the advocates of
'diminished production' were in 1879, but not in quite the
same way. No Bill for compulsorily diminishing production
has as yet been introduced into Parliament, even by a Ministry
of social reform. Lord Bramwell's letter to Mr. Henry
Crompton winds up :
' . . . One word more. It is said that this diminished pro
duction is only to be temporary, that prices are to be got up,
and when got up, then production to the old extent is to be
resumed. This seems to me as reasonable as though someone
should say, " Build a tower, and put a house on the top ; then
take away the tower, and you will have a castle in the air." . . .'
The latter saying would well serve as a motto for the Works
Department of the London County Council.

'FAIR' TRADE 131

unfairness ? Might not our customers laugh at us, and say we
dealt with them from no love or goodwill, but because it suited
us, and it suited them not to buy of us ? . . . Further, suppose
our customers said, " We do not buy of you, because we want
to encourage our own manufactures ;" or, " We must raise a
revenue ;" or, " We have a treaty with another country," or
other reason. The reasons might be bad, but, if bona fide enter
tained, would there be a pretence for saying there was anything
" unfair " ? Might not the baker say to the butcher, " There
is a butcher nearer to me than you ;" or, " I have dealt with
one for twenty years ;" or, " I kill my own meat ;" or, for other
reasons, " I cannot deal with you though you deal with me " ?
Is there such a thing, then, as what Fair Traders call " unfair "
trade ? I say " No."
' It may be said that this is a question of words, that
" unfair " is perhaps not the right word — it should be "unwise."
It is not a question of words only, for if there is anything
unfair in those with whom we deal, there is, in itself, a reason
for not dealing freely with them. ... It is all-important for
those having right ideas to use right words, of which no better
proof can be given than the misleading effect of the words
" Fair Trade." Let us substitute " unwise." Is it unwise to
buy where you can get what you want better than elsewhere
because the seller will not buy of you ? . . . It is for those
who say that such conduct, in the nation or tradesman, is unwise
to make it out. Prima facie, it is wise, for they buy more
advantageously. ' But it may be " unwise " if anything more advantageous
could be done. ... If, by ceasing to buy of the nation that
will not buy of us, we could make it buy (to avoid loss occa
sioned by not selling to us), our temporary loss (from buying
less advantageously) would be compensated in the long-run by
the custom we gained. The butcher, by ceasing to deal with
the best or cheapest baker, might drive him to deal with him,
the butcher, and in the long-run be more than compensated for
his temporary loss in dealing with an inferior baker. In such
cases as I have supposed, the nation or tradesman would be
wise to apply such a coercion as I have suggested, whether
9—2

132 A MEMOIR OF LORD BRAMWELL
they thought or not that there was unfairness. But is there
such a case ? It is for those who call themselves " Fair
Traders " to show it. . . .'
Anent this letter, Sir Lyon Playfair wrote to
him :
' Your argument as to " Fair " Trade is logical and conclusive.
But our "Fair" friends care neither for logic nor for conclu
sions. So I fear your letter had not the force which it
deserves. . . .'
Possibly the Fair Traders had been studying Sir
L. Playfair's speeches, or votes on behalf of ' fair
rents ' for Irish and Scottish tenants, crofters, etc.
In the Nineteenth Century, August, 1881, the
late Sir E. Sullivan advocated ' Fair Trade ' in an
article ' Isolated Free Trade.' Lord Bramwell wrote
to the Economist, August 24 :
' Let us suppose Sir E. Sullivan's notions are right as to
what a 5s. tax on wheat would produce (though they are not),
and let us follow out his calculations. He says : " It is a large
family that consumes twelve 4-lb. loaves in the week, so that
a 5s. duty means a food-tax of 6d. per week on every large
family." Be it so, though it means much more. Now, there
is many a large family the income of which is not above 15s.
a week — say /40 a year. A tax of 6d. a week — 26s. a year —
on that family would be a tax equal to about 10J days' wages.
It would be a tax of 3J per cent, on the income. It would be
as bad nearly as an income tax of 8d. in the £. By the Income
Tax Act, incomes under ^150 are free from income tax ; and
where the income is under /400, the income is not charged on
^"120. How would Sir Edward deal with the "large family"?
It is indeed a " fantastic proposition." It is manifest that
wheat alone would not rise in price ; other things — potatoes,
for example — would. The power to purchase other articles,
clothes, etc., would be diminished in the " large " and small
families. Other mischiefs would follow. Sir Edward says,

A NOTABLE PROTEST 133
"This sum of ^6,250,000 cannot be considered altogether lost.
More than half would have gone into the Treasury." Where
would the rest have gone ? Into the pockets of the landlords.
I would as soon it should go there as anywhere, for they have
been great sufferers, if it is to leave the pockets of the " large
families " ; but it had better stay in their pockets.'
Lord Elcho, M.P., now Earl of Wemyss and
March, was in the summer of 1882 chief promoter
of the Liberty and Property Defence League, a
Solemn League and Covenant for the purpose of with
standing the works of those backsliding Liberal
political economists who either led or followed Mr.
Gladstone, it was not clear which. Lord Elcho had
attacked the Irish Land Bill of 1870 from the stand
point occupied by Liberal and Radical political
economists during the century. His speech of 1870
remains unanswerable ; the remark of Mr. C. Russell
during debate on the consequential Land Bill of
1 88 1, that Lord Elcho had 'made his old speech
of 1870 over again,' is the only serious attempt to
answer it extant. For many years it has been the
singular privilege of the Earl of Wemyss and March
to bring to the notice of the British public by
speeches and letters to the press the fact that latter-
day Liberals have uneasy consciences ; similarly, the
approach of a policeman will often miraculously
convince a drunken man reclining on the pavement
that he can really move on if he likes. It was at
Lord Elcho's suggestion that Lord Bramwell joined
the new Liberty and Property Defence League.*
* He wrote : ' Dear Lord Elcho, — My opinions of half a
century standing are as strong as ever. I like to be governed as
little as possible, and what I like for myself I like for others.

134 A MEMOIR OF LORD BRAMWELL
At the first general meeting thereof, November 29,
1882, Lord Bramwell said :
' . . . Our wishes and our objects are so easily stated that
we ought not to be long in doing it. All we want is to be let
alone, so that those who are kind enough to govern the people
of this country should have as little trouble as possible in doing
it ; that they should mainly concern themselves with keeping
order at home and defending us abroad. I am, however, afraid
that there is at the present time a very strong disposition to do
a great deal more than this — to take a great deal more care of
us than we want to have taken ; and if I wanted any authority
for that, I should find it in a very excellent speech made by a
very distinguished statesman."
Lord Bramwell here read an extract from a speech
of Lord Salisbury's at Edinburgh, apparently in
tended to rebuke those interferences by the Board
of Trade in labour disputes, of which much was
heard in later years, and then continued :
' . . . Now, I should like, not because he is a noble lord, but
because he is a very distinguished noble lord, who will take a
greater share in the future government of this country than he does at
the present moment — I should like to call your attention to a
No one can know my wants as well as myself, and I am pretty
sure that no one will take so much pains as I should to gratify
them. I am certain it is best to leave what I may call natural
causes to operate and bring about natural results. I cannot
but think that our present troubles show this. I agree with
you ; no party is to blame, though ours — mine — ought to know
better. It is the unwisdom of the public generally calling out
for legislation and restriction on all occasions. I used to say
that the difference between us and foreigners was that we do
everything not forbidden, they only do what is permitted. The
difference is ceasing. I shall be very glad to be a member of
your association.'

FOLLY OF 'STATE' MEDDLING 135
speech of Lord Rosebery, in which he says : " I believe at
present the people of Great Britain are better off, and happier,
and more prosperous than their European neighbours, and this
mainly because of their long enjoyment of self-government,
which has enabled them to know what they want, and to obtain
it." Now, I believe this to be perfectly true ; I believe that
the people of this country are better off than the people of any
other country of Europe ; or of any other people in the world,
except, perhaps, those who inherit our institutions, and have
a large amount of unoccupied land — I mean the inhabitants
of the United States and the colonies. To whom are you
indebted for this prosperity ? Not to the Government or the
State. The hundreds of millions which have been laid out
upon railways and roads, and other public conveniences, have
been laid out by the capitalists, and not by the State. As was
well observed by a lecturer the other day, there are about three
harbours in England which owe their existence to the Govern
ment, and one canal, which does not pay its expenses. Every
thing that has been done for this country has been done by
that new subject of persecution — the capitalist. To a very
remarkable measure passed in the former part of this session,
the Electric Lighting Act,* I wish to draw your attention.
Under that Act men are enabled to venture their capital, if
they think fit, in electric lighting companies ; but at the end of
fifteen — or I think it was extended to twenty-one — years, the
local board or the municipal corporation, within whose district
the venture is, is at liberty to take over the work, upon the
terms of paying, not the value of the goodwill or anything
commensurate to the profits which have been made, but upon
the terms of paying the then value of the plant of the electric
lighting company, and the local boards and the municipal
corporations are to carry on the electric lighting. One did
think, at the time when that great writer was studied, whose
science is now relegated to Jupiter and Saturn — one did think
that the worst possible body for managing such a thing as that

* This Act, of course, had to be amended in subsequent
years. Its operation had strangled electric lighting enterprise.

136 A MEMOIR OF LORD BRAMWELL
was a municipal corporation. However, it was done, and
why ? Because waterworks and gasworks have been paying
concerns, and the only remedy which suggested itself to the
minds of those who brought forward this measure was that the
thing should be handed over to a municipal corporation or to
a local board. I cannot help thinking, by the way, that in
addition to the unfitness of these local boards — made up, no
doubt, of very respectable men, but who know nothing of
electricity — it seems such an undesirable thing that they should
have the sort of patronage that they will have, and that they
should have a number of people in their employment who will no doubt
agree with the politics of their employers. Thus, we shall have
Liberal lamp-lighters and Conservative turn-cocks, and other
functionaries of that description. The sort of reason given for
all this is that these things are monopolies. If ever there was
a much-abused \yord in the English language, it is that word
"monopoly." (/ have often thought that if people could not talk
they wmdd reason much better than they do. They woidd not be able
to communicate their ideas or no ideas as well as they do now, but they
wmdd certainly reason much better.) These things are a sort of
monopoly, no doubt, but there are two sorts of monopolies.
If a man has to bring his corn to me because no one else may
grind it, and has to pay what I ask, no doubt that is a
monopoly ; but if a man comes to me because I grind his corn
cheaper and better and more advantageously in every way than
any other miller, what objection is there to that ? But people
treat railway companies, for example, as if, instead of being
public benefactors, they were a set of people who plundered
the public. There are several prohibitions, infringements of
our liberty of action, in the Metropolitan Boards Act. What
the object of this is I do not know, but I give that board credit
for being reasonable. Well, then, we come to a very extra
ordinary Bills of Sale Act. There are all sorts of propositions
in it . . . one of them is that there shall be a nullification of
a bill of sale under £"30. It was supposed that people who
dealt with those bills of sale were money-lenders of so ex
tortionate a character that it was necessary to put an end to
their proceedings — at all events, when the bills were for less

' MORT A UX JUIFS !' 1 37
than £"30. For my own part, after having looked at the
evidence, I cannot think that it was true. The money-lender
carries on a trade, and wants to get a goodwill and a connection, and
I don't believe that he wmdd behave in such a way as not to gain the
goodwill of his customers. However, the Act says that bills of
sale for less than ^"30 shall be null. What is the consequence?
Does anyone suppose that as long as there are people who
want to borrow, and others willing to lend, this will have any
effect ? Certainly not. The only consequence of putting these
impediments in the way of borrowing is that the lender will
charge more for the additional inconvenience to which he is
put. ... I have said that the capitalist is an object of alarm
and aversion. Next to him is the landlord. It is true that
the landlord in England has so dealt with the land as to
redeem it from its "prairie" condition, to use an expression
which has been used before ; but still he is now an object of
great aversion and alarm, and it is proposed that there should
be an Act of Parliament to say that, though the tenant should
stipulate to the contrary, although the terms of his lease should
be based on his making no improvements without the land
lord's sanction, although he should pay less rent in conse
quence of having come to that bargain, it is proposed notwith
standing that he should be at liberty to do what is called
"improve" the land, and then make the landlord pay for it.
So that a man with a temporary interest of I don't know how
many years — five, six, ten, or whatever number it may be — is
to be able to decide upon improvements which the permanent
owner would not adopt, and notwithstanding his own expressed
bargain to the contrary. Then the next thing is the proposal
that employers and their servants should not be at liberty to
contract themselves out of what is called the Employers'
Liability Act. Anything more outrageous than this I cannot
conceive. That is the worst of these measures — they not only
prevent legitimate bargains being entered into, but when they
are entered into, in spite of the prohibition or nullification of
them, the Act of Parliament tempts a man to be a rogue and
to break the solemn engagement that he has entered into. . . .
The next thing — and upon my word I think they ought to be

138 A MEMOIR OF LORD BRAMWELL
ashamed to bring it forward — is that wages are not to be paid
in public-houses. Well, I should propose as an amendment
to that that any small boys who receive wages shall not be
paid in cake-shops, because I suppose the object of this pro
vision is that these men who receive wages shall not be
tempted to spend them in the public-houses. I suppose a
similar reason would apply to the boys I have spoken of.
Then we are to have more factory inspectors — wooden images
with red clothing. . . . The last thing to which I will call
your attention is that the land is to be nationalized. Now,
what that means I don't know. It is a comfort to me that
those who propose it don't know also. I have not the slightest
doubt in the world that there is not any one of them who can
attach a definite idea to that expression — the nationalization
of the land. I dare say you remember that Corporal Trim
showed that he could attach a definite idea to the command
ment to honour his father and mother when he said it meant
giving them three half-pence a day out of his pay. That was
a definite idea, but I doubt whether those who advocate the
nationalization of the land could give you any definite idea of
their meaning if they were called upon to do so. So far as I
can judge, it means something like the State being the owner
of the land. Well, when it is, what is the State to do with
the land ? Is it to cultivate it ? If so, we shall have even
more agricultural depression than we have now — a very great
deal more. . . . And if the land is to be nationalized, why
not chattels, and why not labour ? Why is not labour to be
nationalized, and why should we not get straight into the very
thick of Socialism at once ? That is what this argument
points to, and to this alone. / confess, for my own part, I have
a sort of sneaking liking for Socialism. I wish we could have it.
One cannot but sometimes feel how much better off one is
than the man who gets a few shillings a week, and works hard
for it. . . . It is not, I would say in closing, to be supposed
that we are opposed to all legislative restraint. I will not
attempt to draw any line — indeed, I suppose it would be ex
tremely difficult to do so — where State interference is per
missible and where it is not. ... If the meeting will permit

' OUR OWN GOOD OUR FIRST CARE' 139
me, I will refer them to a book by the late Mr. Jevons, entitled
" The State in Relation to Labour,"* in which what I would
bring forward, if I had the ability to do so, is described as well
as it possibly can be done. I think there is some necessity for
persons to unite and promote the objects we have in view, for
in my belief there is a most mischievous tendency abroad.'
Two years later he followed up this line of reason
ing in his pamphlet ' Laissez Faire,' published by
the Liberty and Property Defence League, 7, West
minster Chambers, London, S.W. :
' The Right Honourable the Chief Commissioner of the
Board of Works, the President of the Social Science Congress,
in his address to that body told the British public that the old-
fashioned notion that people were to take care of themselves
was quite gone and ended. He said that he and the other
members of the Legislature would do that for us. Now, as to
myself, with a single exception there is no one I would so soon
trust with such a task as my old friend Mr.  . I have
perfect confidence in his honesty and good nature, and the
highest respect for his ability. Still, there is one I should
prefer to take care of me, and that is myself; not from any
arrogant notion that I could take better care than he of anyone
else, but because I think I could of myself. I claim it as a
special knowledge in which I excel him. I am sure I know
my own wants better than he does. I have also a strong con
viction that I should be more zealous in the gratifying of them.
Let us put an extreme case. Suppose my friend and I had to
care for each other's wants instead of each for his own. I am
afraid I should feed him sometimes when he was not hungry,
and he occasionally would put me to bed when I was not
sleepy. I should take him for his good to the Liberty and
Property Defence League, and he would take me for mine to
a Social Science Congress, to the edification of neither. Selfish
ness has something to be said for it. Nature was not altogether
wrong when she made our own good our first care. For my
* See note, p. 214.

140 A MEMOIR OF LORD BRAMWELL
part, then, I decline the help of Mr.  and other benevolent
legislators. I ask to be let alone. Please govern me as little as
possible. Prevent me doing mischief to others, but let me do
it to myself if I like ; I shall sometimes, not on purpose, but
for want of knowing better. I am afraid more mischief would
be done to me from the same cause by others.
'Mr.  says: "Among the greater number of writers
and thinkers there has been a distinct reaction from the views
of Adam Smith, and of his successors, Ricardo, McCulloch,
J. B. Say, Bastiat, and others. Almost alone, my friend Mr.
Herbert Spencer has been left among philosophers to preach
the doctrine of laissez faire." The gods I have worshipped
from my youth are all false gods. Worse than dumb idols,
they have been preaching false doctrine. They are not only
not right ; they are wrong, and I have been their devoted
worshipper all this time. It is a comfort to me to think that
Mr. Herbert Spencer is " left among philosophers to preach
the doctrine of laissez faire." " Almost alone," says Mr.  .
The profoundest thinker of the age is "almost alone." So
much the worse for the age. How does Mr.  dispose of
the universally lamented Mr. Fawcett ? Was he no philo
sopher ? What of Mr. Goschen ? Is he none ? Then I give
up philosophers. But who is there on the other side ? Mr. 
says the " movement for extending the action of the State has
received much of its impulse from philanthropists, philosophers,
and political economists, among the greater number of writers
and thinkers," etc., as I have before quoted. Now I will
make a demand on Mr.  which, as a brother lawyer, he
will understand. It is a demand very effectual for stopping
general and unfounded claims. Please, Mr.  , "further
and better particulars." Who are your philanthropists ? No;
I can do without them. But who are your philosophers,
political economists, writers and thinkers ? Give their names
and their writings. I do not say there are no philanthropists,
good men, who would govern us for our good ; but unless they
possess, besides philanthropy, some philosophy and some
political economy, I had rather they had nothing to do with
governing me. Mr.  says : " The more recent school of

?

WOBBLERS V. POLITICAL ECONOMISTS 141
political economists in this country, and still more on the Con
tinent " (Lassalle, Karl Marx, and the like, I suppose), " have
held that while free exchange, free labour and free contract are
important" (really, now, only do think) "principles to maintain,
yet that the State is bound to interfere when individual in
terests result in the oppression and degradation of the lower
classes, and that it is justified in undertaking those works and
functions which can be better attained by it than by individual
effort." Now, does Mr.  really mean that Smith, Ricardo,
McCulloch, Say, Bastiat ever expressed contrary opinions?
If so, I say again, " Further and better particulars." Where
in their works are such to be found ? Did they ever preach a
doctrine different from his own, viz.: "We cannot, I think,
oppose to any proposal of legislation, or to the extension of the
functions of the State, any rigid doctrine of laissez faire based
on theoretic objections to the action of society in its corporate
capacity, or an abstract view as to the inexpediency of inter
fering with individuals. Each case must be dealt with on its
merits." Good. So say we all. So said Smith and Ricardo
and the others, and so says Mr. Spencer. . . .
< Mr.  says that freedom of contract is not interfered with
when the State permits it to be made, though it refuses to
enforce it. The best answer to make is that there is only real
freedom of contract when there is freedom to make an enforce
able contract. Are there two kinds of freedom — one to make
enforceable contracts, the other to make unenforceable? A
freedom to make the latter is no freedom. It is idle. An un
enforceable contract is null in law and in good sense. . . .
Mr.  says : " If on grounds of public policy, or for the pro
tection of the weak against the strong, the State declines to
enforce a particular contract, it does not interfere with freedom
of contract; but the reverse!" Does it not? Why, it does,
but does so for a good reason. The greatest admirer of laissez
faire never advocated that all contracts should be allowed and
enforced ; that an agreement between A and B, that B should
murder C, should give A a right of action if B did not murder
C. So of an agreement between a man and woman for co
habitation. All that the advocates of laissez faire demand is that

142 A MEMOIR OF LORD BRAMWELL
freedom of contract shall not be interfered with without good
reason. The Truck Acts may perhaps be justified on this
ground, but in my judgment it would be better to teach the
wage-receivers to take care of themselves.
' Now let us examine what Mr.  gives as the results of
the new philosophy which is to be substituted for laissez faire
and its old-fashioned teachers, Adam Smith and the others.
By the way, he says the Reform Act of 1868 gave "so great
an impulse to social legislation," etc. Mr.  does not say
when the new school became of authority and Adam Smith
and the others ceased to be. Was it not till the time of pass
ing that Act ? If so, the old school may claim merit for one or
two pretty good things done before 1868 — Commutation of
Tithes, Amendment of the Poor Law, Reform of Municipal
Corporations, Abolition of Slavery, Abolition of the Corn
Laws, Free Trade generally. These are to the credit of the
obsolete school, and some may think will compare well with
what has been done since. ... " There have been two very
distinct impulses to legislation, the one in the direction of
limiting the powers and duties of the Government — in freeing
the action of individuals from the influence and control of the
State." . . . The other impulse, we are told, is " in the opposite
direction of increasing the intervention of the State in our
social arrangements, of multiplying the functions of the
Government, and adding greatly to the number of cases where
the law prescribes the conduct of individuals or restrains their
actions." Let us examine the instances of this " grandmotherly
legislation," as Sir W. Harcourt, borrowing from Sir J. Scour-
field, called it :
' " Landowners, railway companies, owners of public-houses,
ship-owners, factory-owners, and other interests, have been
successively dealt with and made to feel that the State is
supreme. . . . The domain of private contract has been
curtailed. Concurrent with these changes, public opinion,
operating through the House of Commons, calls the Ministers
to account, and holds them responsible for every act of adminis
tration and for the smallest events that occur, to a degree con
tinually increasing." True, "the smallest of events" — things

SUNDRY HERESIES EXAMINED 143
unworthy of notice — things which, if noticed at all, should be
asked not of the Ministers in the House of Commons, but of
the superior of the person about whom the question is put.
The practice is a cowardly way of insinuating a charge without
responsibility, and puts on the person the duty, not of show
ing he was not in the wrong, but more, viz., that he was in
the right, which he should be taken to be till a prima facie case
is made against him. I refused, when a Judge, to notice such
questions. . . .
'As to extension of the Factory Acts: "It is necessary for
the law to impose limitation as a check on the one hand on
the competitive race for profits of the masters, and on the other
hand on the greed and ignorance of the parents." Good —
agreed. Those who are not their own masters need protec
tion. Mr.  proceeds : "It has not been necessary to apply
these laws to grown-up men. They can protect themselves
by combination." Good again. "In some trades, however,
of a specially dangerous character, minute and elaborate rules
have been laid down by recent Acts for their guidance, ' and
are enforced by inspection in the interest of the workmen and
the public' " Cannot the workmen in these trades protect
themselves by combination ? Why not ? As far as they are
concerned, the best thing to do would be to teach them ; make
them protect themselves from their own " greed and ignorance"
instead of treating them like children, prescribing by legisla
tion that a provision of " squash " should be made for them.
' Then Mr.  mentions the licensing and strict regulation
of public-houses, saying that free licensing leads to drunken
ness, that reasonable restrictions were good for the trade, as
they prevented one man keeping open all the other houses by
keeping open his own, and that unrestricted competition leads
in some trades to adulteration! So I suppose Parliament,
to save us from adulteration, should restrict competition!
Mr.  admits that the monopoly has been strengthened.
Police considerations make drink legislation a difficult subject
—half-hearted legislation it ever will be. It is not said down
right that drink shall not be sold, that people shall not drink
intoxicating liquors, but it is made more or less difficult for

144 A MEMOIR OF LORD BRAMWELL

the sale and drinking to be carried on. It is as though it was
enacted that drink should only be sold in broken glasses or up
four pair of stairs, or that the sellers should have a week's
solitary confinement once a year.
'Then Mr.  cites mine regulations. They certainly
seem to him to have been beneficial. But they have, he says,
added to the cost of working ; they have created an army of
inspectors. There again we may say that the men ought to
have been taught to insist on the improvement. As to ships,
laissez faire had better have been left alone. Mr.  says :
"Notwithstanding this" (meddling), "and in spite of a vast
increase of staff, involving an annual charge of £"70,000, it is
to be feared that no effect has been produced on the loss of
ships and the loss of life at sea." None. But a grievous
effect has been produced on ship-owners by the worry and
vexation of these regulations. Their difficulty of competing
with foreigners, bounty helped, has been much increased. It
is most to be deprecated that their troubles should be in
creased in the present depressed condition of shipping. As
to railways, Mr.  says: "The Railway Commission is
empowered to compel a railway company to alter fares and
provide greater facilities for passengers where it is clearly
proved the company is treating particular districts unfairly, or
neglecting its duty." Perhaps; I do not know. But what
is the meaning of treating a district unfairly, or a railway com
pany neglecting its duty if it acts according to law ? Then
we have the Employers' Liability Act. Mr.  does not
state its effect quite accurately. He says it makes employers
liable for the negligence of their agents to their servants. Not
quite so — only for the negligence of those who supply the
place of the masters. And it is not accurate to say it makes
them liable. The effect of the Act is this : The master was
not liable before unless he and the servant agreed he should
be ; now he is liable in certain cases unless he and the servant
agree he shall not be. Theoretically, the change is of small
consequence. Practically it is of more, as people do not
understand it, and incur a liability they are not aware of. The
Act does not seem to have done much harm.

DEMORALIZING LEGISLATION U5

' Then Mr.  cites the Hares and Rabbits Act. If ever
there was a contemptible piece of legislation, it was that. . . .*
Then Mr.  refers to the Agricultural Holdings Act. That
Act had many very good provisions in it. But it had one
which I think discreditable to the Legislature. A landowner
and intending tenant may go over a farm ; may agree that one
field wants draining and make provision for it, and that another
does not, and put down in the lease that it shall not be drained.
Yet the tenant may drain it, and call on his landlord for com
pensation ! In other words, he may deliberately violate his
engagement, and may do so though he intended to do so when
he entered into it. Is this the legislation that Mr. 
admires ? A legislation that allows dishonesty ; that admits
freedom of contract in the making, and freedom of action in
the breaking. It may be said, " What matter ? the landlord will
only pay the value of the improvement, if there is any." Be it
so ; but the matter is this. The landlord thought he had pre
cluded disputes ; he finds himself let in for a lawsuit, with all
its worry and uncertainty. He saying there is no improve
ment, his tenant that there is, the matter to be determined at
the cost of the man in the wrong, or, rather, held to be. What
is the justification for this ? . . .
' Next Mr.  cites the Irish Land Act (1881). . . . We
can quote Mr.  , that it was passed not on " economic con
siderations only, but was of a very exceptional and almost
revolutionary character, capable of justification on broad
ethical, historic, and economical grounds. Its principles were
demanded by the almost unanimous voice of Ireland at the last
General Election !" Very likely. Something of the same sort
was demanded in France about 1790 and the following years.
All I would say about it is, that if it was necessary on historic
and other grounds to take a deal of landed property from its
owners, there was no necessity for not paying them for it.
Note the consequences of this Act. English farmers and
Scotch crofters, not seeing that the Irish Act is " capable of
justification " on " historic " and similar grounds, wish to apply
what they conceive to be its principles to their own case.
* See pp. 356-9. IO

146 A MEMOIR OF LORD BRAMWELL
' Then Mr.  recites the Act prohibiting the payment of
wages in public-houses. The history of that piece of legisla
tion is instructive and amusing. There was an Act prohibiting
such payment in the case of workers at coal-mines. Payment
of their wages at public-houses never could have been necessary.
It occurred to somebody to extend this Act to all wages. And
accordingly, with no evidence of any, or what mischief caused
by the law as it stood, with no evidence as to what mischief
and inconvenience would be caused by a change in the law
without any exception or qualification, a Bill was brought in
to forbid payment of any and all wages in public-houses. The
publican could not pay his own workpeople in his own house !
And the Bill was so ingeniously framed that it prohibited the
payment of wages in houses where no intoxicating drink was
sold. Some of these things were set right, and the Bill passed.
What has been the consequence ? The law has been broken,
as all such laws will be. If it is for the convenience alike
of master and man to pay and receive at the public-house,
it will be done, any law to the contrary notwithstanding.
Here, as in like cases, we have a bad commencement of law-
breaking. ' Mr.  says, as to the Employers' Liability Act, " if it
should prove to be a fact that large numbers of employers are
forcing contracts on their men to elude the liability contem
plated by that Act, I should see nothing contrary to principle
in refusing to recognise such contracts, unless they contain a
fair and reasonable substitute." " Forcing." What is the
meaning of that ? How can a contract be " forced " on a
man ? How can Mr.  , a lawyer, use such an expression ?
How can he, an economist, use it ? Does he not know that
what advantages the workman is to have in wages and other
wise is regulated, not by the will of the master, but by the
"higgling of the market" for labour? Does he not know
that if the master gives more in one way he must give less in
others ? I say must — to get his fair profit and compete with
others. . . .
' Mr.  would have municipalities provide gas and water
at present ; possibly, at a future time, bread, coals, and other

FEEBLENESS, FOLLY AND FRAUD 147
things. . . . Mr.  admits that the good things the State
provides us involve an army of inspectors and £"300,000 a year.
He might add, and a constant worry and intermeddling, causing
not only vexation but expense. However, legislation based
on the preposterous notion that the State can provide for us
better than we can provide for ourselves Mr.  admires. A
legislation which treats people as helpless, and, instead of
teaching them to struggle for themselves, adds to their feeble
ness by a mischievous taking care of them. A legislation
which prohibits a valid bargain between two people who wish
to make it and perfectly understand it. A legislation which
admits the making of the bargain, but permits its breach. A
legislation which, it is said, permits freedom of contract in the
making, and promotes freedom of action in the breaking of
engagements. A legislation which deliberately provides that
frauds may be committed with impunity.
' That this should be proposed anywhere is to me a wonder.
But that it should be proposed here in England almost passes
belief — England, the freest of all countries — the least governed
— the most intolerant of control and interference, and the most
prosperous ; I except colonies and new countries. Not only
the most prosperous, but from its very freedom and independ
ence of restraint the first in the world for everything that
makes a nation great and good. . . .'
Lord Bramwell, one sees, preferred to touch that
side of controversy which really had a fascination
for him. He shows how certain specific Acts or Bills
passed or proposed from 1880 onwards might injure
various real people, A, B or C — people who were
nothing on earth to him, whom he had never seen,
and was not likely to see. Whether those measures
were indispensable to keep ' the party ' together or
to win votes he did not ask.
Nobody would look for a criticism of the new
jurisprudence or of Liberal land legislation — not
10 — 2

148 A MEMOIR OF LORD BRAMWELL
only Irish, but English and Scotch — in Lord Bram
well's reported judgments. Nevertheless, his speech
of July, 1883, in the House of Lords, in the appeal
case of B  ¦ v. The Manchester, Sheffield, and L.
Railway Co.* is an entirely undesigned but very
complete refutation of one of the main principles
underlying the two great Irish Land Acts, the 'most
despicable ' Hares and Rabbits Act, the Crofters
and Agricultural Holdings Acts, Leasehold En
franchisement, Employers' Liability Bills, Railway
Rates Acts, etc.
* B  , a fish-dealer, made a written contract with a rail
way company relieving them of carrier's liability, in case his
fish was spoilt, owing to the company's servants' delay or other
act, in consideration of freight rates on B  's fish being
specially reduced from ^100 to £"80 per ton. One day B  's
fish was delayed and spoilt. Then B  sued the company,
as common carriers, to recover damages, as though no special
terms had been agreed on. The company pleaded that their
contract with B  absolved them, and in the Queen's Bench
Division won the case. B  then went to the Court of
Appeal, where, December 19, 1882, the first decision was
reversed, the Judges holding that B  had been compelled
to make the contract in question — had no alternative but to
make it — since if he had paid £"100 per ton (the usual rate) he
could not have competed with rival fish-dealers, etc. The
Railway and Canal Traffic Act of 1854 nad been interpreted
to mean that freight contracts between railways and their
customers must be 'just and reasonable.'
By the Law Lords in July, 1883, it was held, reversing the
decision of the Court of Appeal, that B  had an alternative
— that he needn't have made the contract in question unless
he chose to; that the contract was, in point of fact, 'just and
reasonable,' as required by previous interpretation of the Act
of 1854.

STICKING TO ONE'S BARGAIN 149
Lord Bramwell said :
' My Lords, — The case of Peek v. North Staffordshire Railway
Company was decided twenty years ago. At the time it was
decided, and from thence continuously until now, I have
thought it wrongly decided, as I know it was contrary to the
intention of the framers of the Act, and this case confirms me
in that opinion ; for here is a contract made by a fishmonger
and a carrier of fish who know their business, and whether it
is just and reasonable is to be settled by me, who am neither
fishmonger nor carrier, nor with any knowledge of their busi
ness. And although that (Peek's) case has been in existence
for twenty years, and has been acted upon in courts of law, if
it were within my competency to overrule it I would do so,
because it is impossible to say that people have regulated their
contracts in reference to it. They have done nothing of the
sort . . . they have entered into contracts, and having had
the benefit of them, they have turned round and sought to
avoid them. ... It stands confessedly that B  (the fish
monger) has put £10 into his pocket by virtue of the contract,
and he is now seeking to avoid it as an unjust and unreason
able one, yet keeping the £10. However . . . we must say
whether or not this contract is just and reasonable.
' . . . I am not prepared to say at this moment that it is an
impossibility that a contract knowingly and voluntarily entered
into by two parties could be unjust and unreasonable. If it
is not voluntarily entered into, that is a very different thing.
But, for my own part, I am prepared to hold that unless some
evidence is given to show that a contract voluntarily entered
into by two parties is unjust and unreasonable, it ought to be
taken that that contract is a just and a reasonable one, the
burden of proof being upon the man who says it is unjust and
unreasonable. ' First of all, its justice and reasonableness are, prima facie,
proved against the man by his being a party to it, and if he
means to say that what he agreed to is unjust and unreason
able, he must show that it is so. I am prepared to hold, in
this particular case, its justness and reasonableness are beyond
the slightest doubt, looking at the profit the plaintiff has made

150 A MEMOIR OF LORD BRAMWELL
by it. And when it is said, " What an unreasonable thing it
is that you (the railway company) should exempt yourselves "
— as I own this agreement does — "from all responsibility,
even for the wilful default or wilful act of your own servants !"
I deny that there is anything necessarily unreasonable. I say
that any man who wants to make out that it is unreasonable
must prove it. I can perfectly understand — as I put in the
course of the argument — a man going to a railway company
and saying : " Now, I deal with you ; you carry fish for me.
We often fall out ; we have disputes. Sometimes the fish is
late, and oftentimes it is injured ; sometimes it is your fault,
sometimes it is not. We get into trouble and into litigation
with each other. If you will make me an abatement of 5 per
cent, or 10 per cent, or 20 per cent.," or whatever he thinks
fit to ask and they agree to, "I will undertake to hold you not
responsible, even if the fish is spoilt or stolen by your servants."
I can understand that to be a perfectly reasonable proposal for
him to make and for the company to accept. It seems to me
to be perfectly idle, and I cannot understand how it could have
been supposed necessary, to require a Judge to say whether
an agreement between carriers, of whose business he knows
nothing, and fishmongers, of whose business he equally knows
nothing, is reasonable or not. If it is a question, it is one of
fact, and evidence should be given to show that the fishmonger
and carrier did not understand their business, but made an
unjust and unreasonable contract. However, I am, for my
part, prepared to hold . . . that the fact that it (a contract)
has been voluntarily entered into is the strongest possible
proof that it is a reasonable agreement, and that I should
require the strongest possible evidence — something more, even,
than a possibility — to show me that that was an treasonable
agreement. Now, in my opinion this was a voluntary agree
ment . . . the fact that there was an "alternative" is only of
importance as showing that the agreement was voluntary. If
there is no "alternative," then, although the agreement is come
to in terms, yet in truth in a sense it is no agreement between
the parties, because there is a compulsion on one of them to
enter into it. . . . Now (in this case) there was most obviously

IMAGINARY UNREASONABLENESS 151

an " alternative." The plaintiff might have sent his fish if he
liked, paying 20 per cent, more than he did — that is to say,
paying £100 where he paid £%o . . . with liability in the
carrier ; or he might have sent it upon the terms upon which
he did send it. He chose the latter. Really, it is difficult for
me to express the opinion which I entertain upon this question
with a sufficient appearance of the respect I have for the
opinion of those who have thought differently, namely, the
learned Judges in the Court below. They seem to say that
there is no option (or "alternative") because the terms are
too good ; the benefit given to the plaintiff is too great ; that
if a less benefit were given to him, and to all the other senders
of fish, if instead of 20 per cent, being taken off the price it
were 10, or peradventure 5 — for 10 might be too much, for
aught I know — then indeed there would be an option. But as
the matter stands it is such an irresistible temptation to him
— I suppose it is so good a thing for him — that he has (no
" alternative" but) to take it. The argument comes to this :
The allowance is so just and reasonable to all fish-dealers that
it is unjust and unreasonable to each of them. Well, one has
heard a great many discussions about freewill, but I protest
that this is a novelty ; I never heard anything like it before.
It is the most extraordinary proposition that I ever heard in
my life. The assumption that he (the plaintiff) is obliged to
do it (accept the company's terms) because he cannot other
wise compete with his fellow-fishmongers is the most gratuitous
one that was ever invented in this world. ... It is said that
because he (plaintiff) has put ^"20 into his pocket we are to
infer that he could not carry on his trade unless he could put
that £"20 into his pocket ; therefore the thing is of a com
pulsory nature. He has no option, no choice (no alternative),
consequently his agreement is not voluntary. I repeat that I
really do not understand how such a conclusion could have
been come to, except by some generous feeling that railway
companies ought to be kept for the benefit of fishmongers.
' Now, just let me ask this question, "just and reasonable."
Is it "just " ? If not, it is «»*just. Is it " w»just " ? Will any
human being say that this man has been unjustly treated ?

152 A MEMOIR OF LORD BRAMWELL
Well, but justice alone is not sufficient ; you must not only
be just, but you must be reasonable, which, by the way,
rather imports that you may be one without the other, I
should think ... an extremely difficult thing. However . . .
is it reasonable, too ? Why, its very justice shows its reason
ableness. I must say that I really do think this is about the
plainest case that ever came before your lordships' house.'
To a demand that ' the State ' (or a court of law
wielding equal power) should ' protect ' a fish- dealer,
a freeman of full age, against incidental incon
veniences arising out of a beneficial contract, the
terms of which he had well understood — that the
State should break a contract for the benefit of one
of the parties to it — Lord Bramwell applied the
same plain, direct test which he so consistently
applied to certain Liberal legislative proposals after
1870.* The plaintiff B  was an ideal object for
* Addressing the British Association, July, 1888, he said:
' The following specimens of proposed interference with
property and freedom of contract may interest you : A Bill to
give everyone a right of access to mountain or uncultivated
moorland for recreation or study. A Bill that, notwithstand
ing any agreement to the contrary, a tenant may obtain com
pensation for improvements done against the landlord's consent.
A Bill to compel employer to give his servants holidays with
out deduction from wages. Another Bill to let tenant improve
without and against his landlord's consent and opinion, and
against their agreement. A Bill that a colliery tenant may,
notwithstanding any agreement to the contrary, have his lease ex
tended if he has been unable to work owing to depressed state
of trade. A Bill that everybody may fish in rivers which are
highways or along which there is a right of passage. A Bill
that property may be taken for labourers' dwellings without
payment of compensation for loss of trade, profits, goodwill,
etc. Another similar Bill, but one year's profits allowed. A

NO SIN TO ROB A RICH MAN' 153

' the State's ' protection, constructively a ' poor
man,' therefore, in comparison with that soulless
monopoly, a railway company, an object of sympathy.
Clearly B  could not feel comfortable and happy
unless allowed to break his contract. The railway
company would remain very wealthy in any case.
Deeply rooted is that great maxim of natural juris
prudence, 'It is no sin to rob an apparently rich
man.' Although few will assert it seriously, many
worthy people have acted upon it on a small scale at
one time or another. Juries, especially in employers'
liability cases, hold it in great repute.
Lord Bramwell refused to fix on the wealthy railway
company liability for damage to B  's fish, after
B  had made money by an agreement exempting
the company from liability. He objected also when
tenants who had got farms at a rent of 30s. instead
of 35s.""" per acre — on condition that the landlord
reserved the ground game — asked that they should
have the ground game also, still paying the lower
rent ; objected when tenants holding at 30s. instead
of 35s. an acre on condition that they made certain
Bill which may shortly be described as one to introduce into
Scotland the mischief of the Irish Land Acts. A Bill that
lessees of mines in Cornwall, notwithstanding any agreement to the
contrary, may remove buildings. A Bill giving general right in
Wales and Monmouth to go on lands for recreation, bilberry-
gathering, scientific inquiry, sketching, or antiquarian research.
A Bill that in every execution against the goods of a house
hold necessary furniture to the value of £20 shall be exempt.
In these cases rights of property and freedom of contract are
violated.' * See pp. 203, 356.

154 A MEMOIR OF LORD BRAMWELL
improvements, which they well knew would become
the property of the landlord at the expiry of the
agreement, after benefiting by the improvements
and the lower rent, asked Parliament to give all
improvements to them. The judgment in the
Court below seems to have been shaped in accord
ance with the ethical preferences of the day after
to-morrow, which in 1882 were beginning to take
definite shape. Lord Bramwell's difficulty was that
some struggling railway company might conceivably
try to break its contract with a wealthy fish-dealer,
pleading that unless it charged ^"ioo per ton (in
stead of £%o as agreed), it could not compete with
rival railways or with sea-carriage. What on earth
was he to do then ? A practical politician would
have replied that everybody knew quite well railway
companies were not likely to try and break con
tracts. Nor was a landlord likely to sue as afore
mentioned for rent on the 35s. scale, averring that
the tenant had got a bargain, in respect to ground
game or improvements, unjust and unreasonable to
landlords. Elasticity, large-hearted caprice, are essential in
politics and legislation. That Lord Bramwell's
ideas were inelastic he showed by the remark in
the railway case, ' I, neither a fishmonger nor a
carrier, am yet asked to say how each should carry
on his trade.' By 1883 M.P.'s were gradually
becoming both fishmongers and carriers in the best
sense of the term, and could say exactly how trades
men, professional men, landlords, tenants, employers,
or workmen, should bargain with each other.

t 155 ]

CHAPTER V.
the reaction against 'plain whig
principles:
Mr. Gladstone and Lord Bramwell represent bifurcation of
Liberal idea — What the two knew of each other — Patristic
and supramundane source of Mr. Gladstone's economic
views — Tory political economy always marked ' Made in
Heaven ' — Canonical or mediaeval economics same origin
— Clash with rough English Common Law notions —
Lord Bramwell loyal champion of latter — Tory party
never quite renounce their mediaeval or ' paternal '
economic ideas — Did Mr. G., after becoming Liberal
Leader ? — Anxiety among ' orthodox ' Liberals caused by
reactionary tendencies after 1880.
Mr. Gladstone seems to have played an important
part in that episode of Liberal economic evolution
which interested, also vexed, Lord Bramwell in his
latter years. Mr. Gladstone has been the cause of
many people doing things. These two men, although
long members of the same party, very well repre
sent irreconcilable conceptions of political economy
and jurisprudence ; represent an antagonism under
lying the political developments of the last thirty
years. They are typical men, notwithstanding that
Mr. Gladstone's influence over the nation's policy

156 A MEMOLR OF LORD BRAMWELL
was paramount for a generation, Lord Bramwell
being all his life a workman, with nothing to say to
the British public directly during working hours ; a
commanding authority on questions which it was
imagined affected lawyers chiefly ; an outsider in
respect to statecraft.
Each man was well known to the other. This
letter refers to the Collier episode :
' 10, Downing Street, Whitehall,
' October 26, 1871.
' Dear Baron Bramwell,
' If it be agreeable to you to accept one of the judge
ships to be constituted under the Judicial Committee Act of
1871, I shall have great pleasure in submitting your name to
the Queen with that view, and I shall feel, if so permitted,
that I am proposing an arrangement eminently advantageous
to the public service. ' Believe me,
' Faithfully yours,
'W. E. Gladstone.'
Lord Bramwell asked for time to consider his
decision. Then Mr. Gladstone wrote again :
' 10, Downing Street, Whitehall,
' October 30, 1871.
' . . . I appreciate highly the spirit in which your letter is
written, and nothing can on general grounds be more reason
able than your request for time. But we are hard driven by
the difficulties arising from dispersion. The Court meets on
the 6th. A Privy Council meeting must be held at Balmoral
on Friday to swear in. Your acceptance on Wednesday
afternoon would be in ample time ; but what would your
negative then be ? Allow me to suggest that in this difficulty
you would save time if you could make it convenient to come

UTTERLY REGARDLESS OF LAW 157
up to town at once, so as to be in immediate communication
with the Chancellor, as he is the person who will be held
responsible by the public and the profession for the starting of
the Court in due time and form. Forgive this officious sugges
tion, prompted by the pressure of circumstances. . . .'
The public, legal profession, and press, do not
seem to have actually held Lord Hatherley, C, re
sponsible. As early as 1880 Lord Bramwell had
formed a clear and emphatic opinion of Mr. Glad
stone's characteristics, and once expressed himself
thus at Assize time to an Under-Sheriff — still living —
of one of the Northern counties, who considered the
words worth taking down at the time :
' Gladstone is a man of powerful mind, genius and energy,
but of overweening arrogance. As honest as nature allows
him to be, he would not do deliberate wrong ; but he is of such
a subtle mind as to be able to deceive himself easily into
believing black is white. A man utterly regardless of law, and of
anything which stands in the way of William Ewart Gladstone.'
When considering how far Mr. Gladstone's influ
ence determined latter-day reaction against 'the
political economy of our youth,' it may be noted
that after 1869 his activity is by no means wholly
political. As his incomparable influence over his
countrymen and his party grows, hesitation is dis
played alike by old Liberals, new Radicals and
Indifferentists to advance further along that track of
economic freedom, self-help and independence of
governmental interference surveyed, staked out, and
partly levelled by a great cohort of Liberal students
and statesmen during the early and middle part of
the century.

158 A MEMOIR OF LORD BRAMWELL
Designedly or undesignedly, the Liberal party is
edged, or cajoled into an attitude half sceptical, half
reactionary, towards freedom of contract, freedom of
competition, and freedom of trade, which are not
three things, but one thing. Since the Tory party
had, in such matters, consistently zigzagged or
wandered round in a circle, like men lost in the
Bush, when the Liberal party went astray the
nation went astray.
From 1870 onwards Mr. Gladstone's crypto-
Socialistic measures escaped attention because they
were so much ' dunnage,' worked, like fustic between
mahogany logs, into the interstices of those grand
political measures which formed the main cargo of
the stately Liberal ship. Lord Bramwell saw the
bulk of Mr. Gladstone's followers — already doubting
and hesitating to advance — faced, after 1880, to the
right-about, and invited to take precisely the opposite
road, which led back to mediaeval political economy,
or sacerdotal Socialism. Thence Mr. Gladstone
had originally got much inspiration. Undoubtedly
he held at one time that it was the duty of the
Crown, the Executive, the Legislature — of the
ruling class, however appointed — as vicegerents and
representatives on earth of the Almighty, of Divine
Providence, to moralize civic relations, to redress
inequalities of fortune and condition, to protect un
successful adult competitors, the world's failures,
against the penalties and inconveniences of failure,
to make the lot of the poor and humble less
intolerable, even at the expense of the rich
and mighty. He had plenty of authorities for

CANONLCAL ECONOMICS 159
that view, from Aristotle to Suarez and Wilson
Croker. One of the radiant fancies of Mr. Gladstone's
political youth was that such a policy, tempered by
Divinely-Ordered Caprice, would solve economic
and social problems in the noblest and worthiest
manner. One of the discoveries of his maturer
years was that electoral and political changes in
this country had turned the poor and humble
(whose lot was to be made less intolerable) into
the majority, while the rich and mighty (at whose
expense bright dreams were to be realized) had
become the minority. It may then have been too
late for him to reconsider his views. At various
epochs in history lofty conceptions of the functions
of ' authority,' similar to Mr. Gladstone's early con
ceptions, have been entertained by various people,
who invented for that ' authority ' various taking
names. In the Middle Ages legists, schoolmen,
and sacerdotal economists, following the teachings
of early Christian Fathers and commentators on
canonical law, had a plan. Socialism, tempered by
caprice, was the economic ' note ' of the Roman
Catholic Church in its day of civic and judicial
activity and power. On the Continent of Europe
especially, in a society where force and violence
determined claims to property, where the tribunals
were dependent and the people without local or
national liberties, that kind of Socialism, inculcated
by the Church primarily as a personal obligation
upon all baptized Christians, is now admitted to
have been, when embodied in legal codes and pro-

160 A MEMOIR OF LORD BRAMWELL
cedure, a shield and buttress for the unarmed and
ignorant against the oppression of a well-armed
ruling class. Pontiffs, councils, legists, while thus
rendering unquestionable service to humanity and
civilization, always reserved a dispensing power —
the right to ' draw the line ' if circumstances re
quired, if the growth of commerce, industry, and
wealth (or the needs of the Church) made it advisable
to waive or suspend Christian economic teaching
about speculation, covetousness, usury, fair rents,
the living wage, 'the just price,' or private property
in land. Similarly Mr. Gladstone has ' drawn the
line ' when asked to approve land nationalization or
Eight Hours Bills. It was largely this element of
Divinely-Guided Caprice, this economic dispensing
power claimed by the Church, which in England
raised that long quarrel between Kings, Barons, and
people on the one hand, and representatives of Papal
or sacerdotal authority on the other hand. The
dramatic story of English law often turns upon a
struggle between ' the Latin garrison ' who stood
for canon law and that succession of very English
Englishmen who maintained, against the foreign
importation, vital principles of the leges Anglice —
a poor thing, but their own. The attrition of
English ideas, of custom, of tribal and folk maxims
— gathered, as Tacitus declares, ' in the forests of
Germany ' — moulds these English laws ; what they
owe to popular tradition, prejudice, precedent, is
prudently set forth in coherent, uniform, charac
teristic rulings by Lord Bramwell's doughty pre
decessors. Therefore, as English Judge and master

OLD FOES WITH NEW FACES 161
of Common Law, he was heir general to a very
ancient feud. Consciously or unconsciously, his
opinions and writings reflect the historic struggle
between those antagonistic conceptions of political
economy and jurisprudence, which alone, whatever
names they took, have powerfully influenced
civilized societies. As his speeches and writings
plainly prove, he clamped the gauge at a certain
mark. Not by his design — rather automati
cally, and of necessity in the course of discussion
— certain ideas, assertions, schemes which found
favour with latter-day Liberals, came to be measured
against that standard gauge of his. Probably he
never noticed the odd resemblance between canonical
ideas about political economy or jurisprudence and
Mr. Henry Broadhurst's, Mr. Shaw Lefevre's, or
Professor T. H. Green's ideas about the same.
Painstaking students such as W. J. Ashley and
Cunningham were almost the first to identify, in quite
recent years, the essentially dogmatic and theocratic
basis of mediaeval economic theories. Nevertheless,
imbued, saturated, as Lord Bramwell was with the
spirit and essence of English jurisprudence, his
views, more especially about contract, were neces
sarily antagonistic to those of canonical philan
thropists and their modern plagiarists. He had no
respect whatever for Infallible Caprice, either in
legal or economic affairs.
It was always impossible for Lord Bramwell to
'join the Tory party,' because when it did dawn
upon a few thoughtful Conservatives that liberty of
the subject and security of property, real as well as
n

162 A MEMOIR OF LORD BRAMWELL
personal, had always been the keystone of that
detested ' political economy ' which philosophic
Radicals discoursed about for a century, the thought
was too bewildering to be mastered by the party.
Besides, Lord Salisbury apparently has never argued
himself out of his dislike to the Manchester School,
nor got rid of his early sympathy with those paternal
or ' scholastic ' theories of political economy dear to
' Young England' Tories.
The Tory party, in which Mr. Gladstone gradu
ated as economist, has never quite renounced its
unconscious historic leaning towards ' sacerdotal
Socialism,' tempered by incoherent reverence for
vested interests. The generous dream among the
group of ' Young England ' Tories of fifty or sixty
years ago — just becoming alive to the grisly in
equalities of fortune and opportunity in the modern,
high-pressure industrial world, eager to find a solution
for social problems more humane and chivalrous
than that offered by dogmatists and doctrinaires
like Adam Smith, Malthus, Bentham, John Austin,
Ricardo, McCulloch, Mill — was substantially a re
discovery of the economic doctrines of Aquinas and
the Glossatores.* By 1870 Conservatives had come
to acknowledge, frankly if not always cheerfully, the
material, £ s. d. success of that Free Trade policy
which Liberal economists had enforced twenty-five
years before. But it was hardly to be expected that
Conservatives who forgot how Edmund Burke had
* Aquinas and his disciples taught that to buy in the cheapest
and sell in the dearest market was base and sinful.

' T DO BELLE VE IN FREEDOM'S CAUSE' 163
answered all the speeches Mr. Gladstone would ever
make, and were very anxious about purely political
matters after 1870, would spring to the defence of
' Liberal principles' against economic Agnostics.""
It is certain that in the face of Europe and the
civilized world Mr. Gladstone has ranked for two
generations as one of the most illustrious champions
of Free Trade. Even so late as 1894 he in effect
expressed to M. Leon Say his sorrow at finding that
French democracy had banished sound economic
* Tory criticism of the Land Bills of 1870 and 1881 in
particular was always weak, random, ineffective, because
Mr. Gladstone's Irish economic policy could only be con
clusively refuted by those orthodox Liberal arguments which
Lord Bramwell (pp. 145, 299) cited. Latter-day Tories, who
considered the Irish Land Acts of 1870, 1881, et seq., wholly
detestable, never had sufficient intelligence to realize that they
were also wholly indefensible. Meanwhile, hostility displayed
by Liberal economists to English and Scottish land-owners
during a generation — for which Mill and Cairnes are largely
responsible — made a defensive alliance between Liberal and
Tory land-owners, capitalists, shareholders, employers of labour,
and rate and tax payers, difficult even after 18S9, when
' Liberal ' economic legislation began to take the shape of a
random onslaught upon ' capitalism ' generally, at the dictation
of the Radical-Socialist-Labour minority. It was precisely in
respect to land tenure and land legislation that orthodox
Liberal economists most frequently abandoned their principles
after 1870. Socialists in and out of Parliament were not slow
to take advantage of such divisions in the hostile camp when
ever destructive legislation affecting others than land-owners
came up. It must, however, be remembered that while the
Liberal party was switched off the Individualist on to the
Socialist track by a very great man, the Tory party (after
Lord Bramwell's death) was not. 1 1 — 2

164 A MEMOIR OF LORD BRAMWELL
doctrine to Saturn and Jupiter. It is not clear
that Mr. Gladstone, any more than Lord Salisbury,
has ever been a stalwart advocate of those principles
on which alone Free Trade can be defended. In
Mr. Gladstone's Free Trade speeches after 1870
the 'cheap loaf side of the argument is much dwelt
on ; there is usually eloquent denunciation of the
Tory party for trying to make the food of the
people scarce and dear in order to keep up agricul
tural rents ; glowing descriptions of increases in
exports, imports, manufactures, and national pros
perity. His last great Free Trade speech (Leeds,
1882) showed no consistent or hearty repudiation
of the basic heresies of Protection. The ' posi
tive ' Free Trader who merely tells us that Free
Trade has cheapened commodities and increased
national wealth is only half a Free Trader.*
* The £ s. d. argument that Free Trade ' pays,' increases
exports and imports, stimulates manufactures, adds to national
wealth, and benefits consumers, Lord Bramwell did not regard
as the argument for Free Trade, rather as an ' aside ' in the
controversy. Assuming that the nation did the right thing in
1846, and that it has 'paid,' why was the thing then done
right ? Why is protective legislation, direct or indirect, wrong
always and everywhere ? He put the matter very clearly in
his address to the British Association, 1888 :
' . . . The governing precepts of political economy are few.
In my judgment its main one is laissez faire — 'let be.' As
M. Molinari says, " Notre evangile se resume en quatre mots —
' Laissez faire, laissez passer.' " Leave everyone to seek his own
happiness in his own way, provided he does not injure others.
Govern as little as possible. Meddle not, interfere not, any
more than you can help. Trust to each man knowing his own
interest better, and pursuing it more earnestly than the law

'PROTECTION' ALL ROUND 165
Nor is it splitting hairs to ask whether a reputed
economist clearly perceives the ' negative ' side of
the matter also — the reason why ' State ' supervision,
interference or regulation aiming at ' protection ' of
any form of human industry or activity must do
harm. Mr. Gladstone has seldom said (and it is
not clear that he ever believed) that consumers have
an indefeasible right to benefit by absolutely free
and unrestricted competition among producers
everywhere, at home and abroad, or that, conversely,
British manufacturers, farmers, tenants, or adult
wage-earners have no claim whatever to be pro
tected, directly or indirectly, by ' the State ' against
competition in any form. If sundry Acts passed
or approved by Mr. Gladstone between 1870 and
1894 are defensible, valid arguments for Free Trade
in ' some things ' would still remain ; but no answer
remains to demands from British farmers and manu
facturers, losing money in their business, to be pro
tected against 'nefarious,' cut-throat competition —
against that selfishness, money-hunger, and desire
for gain which prompt the foreigner to send us
can do it for him. I believe this maxim will justify most of
the rules that right economists have laid down — let your
people buy in the cheapest and sell in the dearest markets.
That enjoins Free Trade, for the trader, whether he buys at
home or abroad, seeks the cheapest market. If a duty is put
on the foreign article to protect the home producers, the trader
is interfered with. The consumer is interfered with. The law
says he shall not consume that which he can get at the lowest
price — that the producers, the capitalists, and labourers shall
not employ their capital and labour as they would if left to
themselves. . . .'

166 A MEMOIR OF LORD BRAMWELL
cheap commodities. Either all adult freemen are
entitled to be protected by ' the State ' against com
petition, or no adult freemen are. One probable
explanation of Mr. Gladstone's share in latter-day
reaction against the 'political economy of our youth,'
of his crypto-Socialistic legislation after 1870, is
that he always disliked the materialistic tendencies
of the Manchester School, and therefore very
naturally welcomed and availed himself of the
growth of milder sentiments and a more highly-
sensitized national conscience during the latter
quarter of the century. Besides, Edmund Burke's
ideas of a ' representative ' had become obsolete ;
the true function of pilot on board the democratic
ship was declared to be, to ever follow that course
which steerage passengers prefer. Those easy
going millions inhabiting prosperous, Free Trade
England had perhaps grown afraid or ashamed of
naked liberty. Mr. Gladstone never quite trusted
it. He may have believed after the 1880 election
that the time had come to realize the radiant dreams
of his Tory youth. His projection of ethical,
quasi-theological ideas belonging to the Age of
Faith into the domain of British politics and juris
prudence would have a good deal to do with Lord
Bramwell's irreconcilable attitude towards neo-
Liberal legislation, assuming that Mr. Gladstone's
was the influence which, at a decisive moment,
turned the nation back from economic freedom ; that
it was he who gave the shove downhill — did not
make the hill slope, but gave the shove.
Prior to 1870 sundry Liberals — protesters after-

GARRISON OF DOUBTING CASTLE 167
wards against the economic aberrations of the party
— also anticipated danger to liberty, property, public
welfare, mainly from the political side. Mr. Lowe
(who had seen something of it in Australia) ex
pressed with academic recklessness his own distrust
of 'unmitigated democracy' in 1866. Our institu
tions might be Americanized by Mr. John Bright.
Extreme developments of Radicalism in a purely
political direction might land us in Republicanism,
weaken the army and navy, destroy the House of
Lords, etc. Conservatives said such things openly,
philosophic Liberals to each other. Liberal ' In-
evitablists,' men who adhered to the party from
1846 till 1886 in order to guide or moderate forces
which they dreaded, but believed to be irresistible,
never had much faith in the power of their own
magical prime mover, Liberty, to right in time
small clashing wrongs, to solve new social problems,
magnified and exaggerated though they were, by
sheer increase in numbers, and in time build up a
contented, therefore Conservative, middle and work
ing class.
Mr. Lowe, when warning his party that ' we must
educate our masters' — omitted to finish the sentence
with the words 'to vote for our opponents.' The
proper conclusion of the sentence was not obvious
until 1895. Yet after Lord Bramwell was dead it be
came plain that the instalment of Free Trade won in
1846 and the Elementary Education Acts— measures
which Tories feared, and Liberals hoped would
make an end of Conservative Ministries altogether
 are not only the two most important measures of

168 A MEMOIR OF LORD BRAMWELL
the century, but are also Conservative measures,
since they more than any contributed to the birth and
rearing of that novel and unfamiliar phenomenon
called — because it certainly isn't anything else, and
must be something — latter-day Conservatism. By
obliterating the sense of 'inequality,' material and
intellectual, they have sterilized the very protoplasm
of irreconcilable Radicalism, thus — although in a
negative sense chiefly — determining the opinions
and political action of the English middle and work
ing classes. Acts extending the franchise, which
Tories feared, and Liberals hoped would give im
mense scope to Radical or revolutionary schemes,
are seen to have merely readjusted machinery, as it
turned out, enabling neo-Conservative equanimity —
largely due to Free Trade and Education Acts — to
sway the scale in 1874, 1886, and 1895. Franchise
extension, while exercising scarcely any direct forma
tive influence upon opinion, probably weakened the
prestige, dignity, personal authority, of the House
of Commons. The representative system, so soon as
it verged upon logical conclusions, began to develop
germs hurtful to itself. Men like Lord Bramwell
deemed Parliamentary government immortal, while
all the time it may only have been robustly immature.
Tories, who had a secret grudge against representa
tive government (although never able to put in
words the real reasons for distrusting it), imagined
their party had nothing to lose by deterioration
of the elective House ; Liberals of Lord Bramwell's
stamp knew that they themselves had everything to
lose. Frank dislike to extension of the franchise,

MISGIVINGS AND CONSOLATIONS 169
which he expressed and others whispered in i860,
was mainly due to prevision that the inroad of ' un
mitigated democracy ' must mean the disestablish
ment of that Liberal hierarchy to which he belonged
— men like himself being hustled out of the party.
Meantime, it did not occur to Liberal doubters
(then, indeed, lacking examples from abroad) that
the economic bent of all democracies is necessarily
reactionary and Protectionist. While current doubts
and anxieties were political mainly, the economic
revolution initiated by Mr. Gladstone's Irish Land
legislation of 1870 and 1881 was sprung on the
nation. It had not been ushered in by exhaustive
and minute controversy as the new Poor Law,
Repeal of the Corn and Navigation Laws, Muni
cipal, Legal, Ecclesiastical Reform, had. Rightly
or wrongly, it was an anxious time for those Liberals
who sincerely believed that a reactionary policy in
the economic field might work irreparable injustice
and mischief.
During the years which succeeded that franchise
controversy which disquieted Lord Bramwell, it
looked as if Palmerston first, and then Glad
stone,* would keep matters straight, while avert-
* In 1864 Chief Baron Pollock wrote to Baron Bramwell :
' . . . Palmerston must be a sensible, good-tempered fellow
to "keep things together," and such things! The present
Cabinet reminds me of "the happy family" which a man used
to exhibit at Waterloo Bridge, after at Charing Cross. . . .'
And again, March 29, 1868:
' ... It seems almost funny that this moribund Parliament
should desire to make the Irish Church a donatio causa mortis ;
it is odd there is so little stir. But I think it not at all unlikely

170 A MEMOLR OF LORD BRAMWELL
ing such a bitter alternative as the ascendancy
of Disraeli. When Niagara was actually shot in
1868, the falls turned out to be about eight inches
high. Lord Bramwell then began to think that
the mischief impending was not political at all,
mainly economic. Meanwhile, up to a certain point
Mr. Gladstone's ingrained economic ideas, thanks to
Whig carpentry, dovetailed in very well with the
ideas of the new era.
Putting alarmist rhetoric and exaggeration on
one side, was there, it may be asked, any good
grounds for that anxiety which Opportunist Liberals
felt — which Lord Bramwell expressed without waste
of words — during 'the transition period' between
1880 and 1893, when the electors enfranchised in
1868 and 1884 were feeling their political feet —
learning, as other ' ruling classes ' in this country
have had to learn, the responsibilities of power?
What can nowadays be seen easily enough (after
the event) is that the House of Commons, absorbed
that although many would not concur in Gladstone's resolu
tion, they entertain no very high opinion of the Irish Church.
I think I have already told you what I said to John Austin
thirty years ago : " The Irish Church is a ' nuisance,' but the
Roman Catholic religion is a greater." It is not every nuisance
that is to be instantly abated. The River Thames was a few
years ago a very great nuisance. . . . One reason for not
adopting Gladstone's resolution is that in all great reforms,
such as rebuilding a church or a hospital, reconstructing Con
stitution or a Government, how it is to be done, and whether
when so done it will be an improvement, is of the essence of the
inquiry. Therefore the details (so to speak) do enter into the
principle of the measure.'

BENEFICENT ACTIVITY 171
in Irish affairs for thirteen years, was unable to pass
measures which seemed very ' practical politics '
indeed in November, 1882, when Lord Bramwell
joined the newly - formed Liberty and Property
Defence League. Mr. Gladstone's excellent health
seemed to portend that the nation had still several
years of disturbance ahead. It was difficult at that
date to predict that the beneficent activity of Mr.
Parnell's followers and their lavish demands upon
'the time of the House' would result in smothering
a ' Permissive ' or Prohibition Act (without com
pensation), ' some form ' of land nationalization,
leasehold enfranchisement, Eight Hours and Early
Closing of Shops Acts, penal factory legislation
aimed at the ruin of the capitalist, confiscatory taxes
levied upon the weakest class, as well as mis
cellaneous interferences with personal liberty, free
dom of contract and exchange, all of which the
House of Commons of 1880-85 was> m tne opinion
of many people, disposed to pass. Judging by what
had been done in Ireland, the Liberal majority
under Mr. Gladstone's leadership at that date repre
sented the most formidable and efficient instrument
of inadvertent wrong-doing and oppression which
the nation had seen since ' the Cavalier Parliament '
of 1661-79. The Liberal party remained intact in
1880-85, even although its prestige did get a little
out of repair. Ostentatious, if grudging, support
from the Whig leaders — men of property and high
character — lent an air of respectability to every act
of the Ministry, inspired a hazy sense of security
among capitalists, manufacturers, and business men,

172 A MEMOIR OF LORD BRAMWELL
especially in the North. In the constituencies the
extreme Radical element, largely consisting of Irish,
not yet split into warring factions under rival
' labour,' Social Democratic, clerical, anti-clerical,
etc., leaders, contributed a reserve (or at least a
useful threat) of physical force, available to back
up any Liberal policy of 'thorough.' The display
of Conservative sentiment in 1874 had come to be
regarded as a mere accident, a temporary aberration,
the result of black magic exercised by Lord Beacons-
field. Mr. Gladstone's moral prowess, shown by his
adhesion to the Concert of Europe, the imprison
ment of Mr. Parnell, etc., had, it was thought,
banished the possibility of sustained Conservative
reaction. Further, in November, 1882, when Lord
Bramwell first addressed the Liberty and Property
Defence League, Parliament virtually consisted of
one Chamber. Certain constitutional functions of
the House of Lords had remained in abeyance for
a generation, while by passing the Arrears Act of
June, 1882, in the teeth of Lord Salisbury's remon
strances, the House of Lords had gone as near
abolishing itself as any legislative Chamber ever
went. In November, 1882, nobody foresaw that
eleven years later Mr. Gladstone would reserve for
the House of Lords the privilege of cremating the
dead Home Rule Bill (thereby emphasizing the con
stitutional paradox that the hereditary or non-
elective chamber may, after all, be sometimes the
truest mirror of public opinion), reviving its authority,
and endowing it for the moment with great popu
larity, respect, and prestige. In May, 1886, the

IRISH PRECEDENTS 173
House of Lords seemed to have sunk as low as it
could sink. It passed the second reading of a
Durham ' Sunday Closing ' Bill. Seventy members
of the House even voted for the third reading —
why, it is impossible, after so many years' interval,
to ascertain.
Apparently, justification for anxiety and alarm
among Liberals which prompted the formation of a
League to attempt work which was really the business
of Parliament* was found in the circumstances, the
very practical effects, of Mr. Gladstone's Irish Land
legislation. It must be remembered that prior to
1870-81 there was no instance on record of Parlia
ment deliberately and methodically inflicting wrong
and ruin upon one particular class. The enactment
of penal laws affecting the property of Roman
Catholics and Dissenters under Tudors and Stuarts
had at all events the miserable excuse that the pro
scribed classes had shown themselves to be politically
hostile and dangerous at a time when Protestantism
and Monarchy were in constant and deadly peril.
After 1832 there had often been loose talk about
Acts of Parliament amounting to ' robbery,' ' con
fiscation,' etc., but in the end no deliberate wrong
to individuals had been done. People thought it
would so continue always. The Irish Land Acts
of 1870 and 1 88 1 undeceived them. For the first
* In June, 1882, Sir Charles Trevelyan declined to join the
League on the rather imaginative grounds that 'he looked
upon Parliament as the protector of liberty and property, and
thought that an association of this kind might interfere with
Parliament. . . .'

174 A MEMOIR OF LORD BRAMWELL
time in English history citizens accused of no
offence were deprived of lawfully acquired property
without compensation, while hundreds of innocent
persons holding land in Ireland who had relied
upon the honour, sense of justice, and good faith
of Parliament and the nation were ruined. Although
Ireland was far away, a pantomime country in the
view of many, although the people thus wronged by
statute were out of sight, the inference was strong
after 1881 that in seeking to remedy old injustices
new injustices would be done.
Most of the distinguished and discontented
Liberals of 1882 cheerfully jettisoned one doctrine
of political economy after another in succeeding
years, never realizing how all parts of the edifice
of political economy and jurisprudence are inter
dependent — each story or compartment underpinned
alike. Lord Brabourne, sound in 1882 about
English workmen's right to freely bargain with
employers, could not see in 1887* that land-owners
had also made a binding bargain with tithe-owners
under 6 and 7 Wm. IV., cap. xvii. The Duke
of Argyll, orthodox in respect to contracts between
landlords and tenants, condoned in later years pro
hibition of free bargaining between employers and
employed, as well as laws prohibiting the sale and
purchase of strong drink by his neighbours. Sir
William Harcourt, quite orthodox in respect to the
gold standard and the causes which influence the
price of wheat, came to freely borrow ideas about
taxation, the right of property, and the liberty of
* See p. 320.

OTHER PEOPLES CONSCLENCES 175
the subject, from the Fabian Society, the United
Kingdom Alliance, etc. Solicitude for that special
item of political economy which he did believe in
constrained each of these Liberal statesmen in turn
to repudiate rights, privileges, and principles which
other Liberals believed in.

[176 ]

CHAPTER VI.
CONTRACT OR STATUS?
The Common Law as educator — ' A bargain is a bargain ' —
Popular sanction for Common Law maxims — Homely
English notions contrasted with foreign or Latin importa
tions — Reaction in favour of Roman models coincides
with revival of Socialism — ' Teaching contract to know
its place' — Ethical, metaphysical, and rule of thumb
derivations of contract — Essentially 'English' bent of
Lord Bramwell's mind — ' Freedom of contract ' the Pons
Asinorum of loose thinkers.
In an age when the ancient doctrine of 'forfeit'
on default was more and more going out of fashion,
when the idea of consequences, penalties, punish
ment always following misdoing or folly, was
shunned by politicians, attacked by moralists, and
was becoming odious to a good-natured generation,
Lord Bramwell, the kindest-hearted of men, argued
that the letter of the bond must be carried out, that
a bargain is a bargain.
He used to tell a story illustrating the absolute
paralysis which may affect the human mind at trying
moments — in the witness-box, for example. Once
on board a Rhine steamboat he noticed a lady
passenger in the utmost distress, trying by signs to

VIVID SYMPATHIES 177
explain to the officials some matter of consequence.
Fancying that she was a countrywoman of his, the
Baron went to her assistance, and asked :
' Do you speak English ?'
The poor lady had so lost her head that she could
only stammer out : ' Un peu.'
Lord Bramwell therefore continued the conversa
tion in French, scarce a word of which the lady
understood ; German and Italian gave equally bad
results. Finally the lady muttered audibly to her
self :
' How I wish I were safe at home !'
' But surely you do speak English ?' asked Baron
Bramwell. ' I can't speak anything else,' sobbed the lady,
' and that is what makes me so helpless among these
foreigners.' He had travelled over the greater part of Europe ;
had unlimited capacity for taking interest in every
sign and exhibit of human activity, energy, or in
genuity which he came across in his journeyings.
When on circuit, the moment the Court rose the
Baron would be off on a ramble, spying out the
objects of interest in the neighbourhood. He was
an insatiable walker, and mountain climber of the
amateur kind ; few men knew rural England better
than he ; never read in a railway-carriage ; would
say to his travelling companion, ' Do put down that
newspaper and look at the country we are passing
through.' An immense, child-like faith in the in
fallibility of the Ordnance Map was one of his
orthodox failings, and often led him into adven-
12

178 A MEMOIR OF LORD BRAMWELL
tures which amused him vastly ; he always took
with him a section of the Ordnance Map belonging
to the particular circuit he was on, and would insist,
as against the oldest inhabitant, that wherever a
road was marked on the map, there a horse and trap
could go. Occasionally it turned out that the official
road had never been quite made — had been closed
or abandoned for years. In consequence he more
than once landed himself and his travelling com
panions, late at night, at the end of a sheep-track
on a desolate Yorkshire moor, twenty miles from
the assize town.
It was in later life, perhaps, that he insisted most
rigidly upon the importance of binding men to the
legal consequences of their bargains. The terrors,
threats, ' strong arm ' of the law, had, he thought, a
sort of character-strengthening effect. He seems to
have agreed with Holmes that each party to a con
tract should be held to have contemplated the full
legal consequences attaching to it.
He was inclined to be 'a bit of a Socialist' at
times, which would imply a private theory of his
own of the ethical ' mission ' of the judiciary, not,
however, to be fulfilled by conciliating law-breakers.
If people would go to law, strict enforcement of
contracts might, at all events, teach one wholesome
lesson : ' If you have been a fool once, don't be
again ; take more care next time.' Thus there
would be fewer fools, a gain to the nation."" Men
* In 1888 he said at the British Association meeting :
"... Poverty and misery shock us, but they are inevitable.
They could be prevented if you could prevent weakness, and

HOME- SPUN GOODS 179
who love, believe in, and get satisfaction out of their
own profession come generally in the end to think
that, after all, it may afford the best instrument: for
improving their neighbours and fellow-countrymen.
The German Emperor and Lord Wolseley no doubt
think that universal military service is the best
Secondary State School ; Captain Mahan that Nelson
and Admiral Sampson have done most for Dr. Temple's
' education of the world ' ; a much-be-paragraphed
actor or dramatist is bound to point out after dinner
that the stage is the true educator. Lord Bramwell
sometimes may have felt that at best a ' case '
decided, even with perfect wisdom and justice, often
merely leaves suitors themselves and everybody else
in statu quo ante. For the giving of such advice on
life and conduct as he often wanted to give, Lord
Bramwell, during the best of his days, had no pulpit
save the judicial bench. His pet saying, ' A bargain
is a bargain,' is also a true English folk-saying — like
many broad maxims of Equity and Common Law, a
rough English rule of conduct, declaring in common
speech that it is only honest, plucky, fair, to stick to
your word, and take consequences. Unconsciously,
perhaps, our Judges of old adopted such sayings, after
sickness, and laziness, and stupidity, and improvidence, not
otherwise. To tell the weak, the lazy, and the improvident
that they should not suffer for their faults and infirmities would
but encourage them to indulge in those faults and infirmities.
If it is said that poverty and misery may exist without fault in
the sufferer, it is true. But it is but rarely that they do, and
the law cannot discriminate such cases. To attempt to remedy
the disparity of conditions would make the well-off poor, the
poor not well off. . . .' 12 — 2

180 A MEMOIR OF LORD BRAMWELL
much winnowing, sifting, picking over of English
ideas, current from time immemorial in market-place,
playground, village green, workshop. When called
'law,' they were just the resultant of English
character operating upon the facts of everyday life.'"
Deep down in the very subsoil are the roots of our
Common Law, for the making of which the
commonest sort of people provided raw material,
the most uncommon sort of people working it up
into finished goods, never denying, of course, that
the whole thing was borrowed from Justinian.
Never prone to confuse judicial ruling and con
stitutional theorizing, Lord Bramwell avoided that
leaning towards metaphysics which tempted another
master of Common Law, Lord Mansfield, to suggest
some ' moral obligation ' behind contract. Yet the
former Judge's charge in Druitt's case (p. 29)
makes apparently an enormous concession to the
ethical fraternity. The public,' said he, ' have an
interest in the way in which a man disposes of his
* One spring day in the year 1889 the local constable at
Edenbridge noticed Lord Bramwell intently watching a noisy
group of village boys, apparently much excited about some
thing. It was the first day of the cricket season, and they
were, in fact, drawing up rules for their cricket club. Fancy
ing they might have annoyed the old lord in some way, the
constable approached, and asked whether such was the case.
' No, no,' said Lord Bramwell ; ' those lads have been teach
ing me something — how the Common Law was invented.'
The constable considered this a remarkable proof of juvenile
precocity, and observed :
' It's wonderful what they do learn at school nowadays, my
lord — over-education, / call it.'

LNDIVIDUAL RIGHTS 181
industry and his capital. . . .' Here we have a
concise motto for Lord Salisbury and the Fabian
Society at once, an argument for a Compulsory
Rightmindedness Act. But Lord Bramwell's very
next words make plain what is the truth running
right through this famous declaration of indepen
dence. It turns out, after all, that the public's
paramount interest in the matter is to ensure to
each individual absolute freedom in disposing of his
industry and capital exactly as he pleases. ' And if
two or more persons,' he goes on, ' conspire, by
threats, intimidation, or molestation, to deter or
influence [a man] in the way in which he should
employ his industry, his talents, or his capital, they
are guilty,' etc., making out that English Law and
Equity have always been most concerned with
defence of that principle of liberty soldered on to
contract from the start*
* Even Acts of Parliament which ' deter or influence ' indi
vidual freemen ' in the way they should employ their industry,
talents, or capital,' would seem also to be bad. For, granted
that ' influencing or molestation,' covered by the charge in
Druitt's case, are wrong in themselves, does an Act of Parlia
ment make them right ? True, statutory ' influencing ' gets
rid of many evils — private violence, threats, etc. — but the free
man is deprived of his ' liberty of mind and freedom of will ' all
the same. In Hilton v. Eckersley it was said, ' Prima facie it is
the privilege of a trader in a free country ... to regulate his
own mode of carrying on his trade according to his own discre
tion and choice. . . .' Pollock, ' Contract,' first edition, p. 285 :
' The Supreme Court of Massachusetts condemns contracts "in
restraint of trade," firstly, because such contracts injure the
parties making them . . . and expose such persons to imposi
tion and aggression. . . .'

182 A MEMOIR OF LORD BRAMWELL
High ideals or ethical tests applied to contract
or to economic relations probably seemed to Lord
Bramwell as untenable as tests 'deterring, in
fluencing, or molesting ' freemen in respect to
opinion and religious observance. As to the latter
kind of test, the State, at all events, has Holy
Scripture, the Koran, the Shorter Catechism,
tradition, the wisdom of Popes, Councils, Synods,
Convocation, and the religious press to guide it ;
while ethics is, after all, a fluid and empirical
science, constantly undergoing development ; the
ethical view of the moment being the product of
fluctuating sentiment, fashion ; frequently dictated
by one eloquent, zealous, strong-willed individual,
fond of advertisement. Expounders of English
Common Law, never admitting any right in Councils
and Convocations to dictate in matters of opinion,
have similarly refused to dictate to contracting
parties in respect to the adequacy of ' considera
tion.' As a general rule of law, the parties them
selves must be sole judges of that.
An analogy has been drawn between Lord Bram
well's view of contract and that assumption to which
Rousseau gave the name of contrat social. Contrat
is French for ' contract.' There kinship between
Rousseau and Lord Bramwell ends. Those con
tracts, or ' agreements upon sufficient considera
tion* to do or not to do a particular thing,'
which Lord Bramwell made so much of, were in no
way akin to that imaginary treaty, offensive and
* Roman jurists laid little or no stress upon ' consideration ' ;
French contract law almost ignores it also.

COMPULSORY ALTRUISM 183
defensive, between Mankind and the Goddess of
Things in General, by which Lycurgus, Milton,
Rousseau, the Physiocrats, and even Erskine and
Whewell, sought to interpret political, social, and
economic phenomena. Rousseau, like the Encyclo
paedists, was ambitious to cage Cosmos inside a
phrase. He was too indolent or ignorant to trace
and analyze development of those free English
institutions, contract included, which it was the
fashion among Encyclopaedists to admire. A meta
physical short-cut like the contrat social saved a
great deal of trouble. It was never an English
idea. The sturdy reasonableness of Common Law
had even expressly condemned, in anticipation one
might say, general contracts, ' binding for uncer
tainty.' It is significant of wholesome anti-meta
physical bias that no contract, liability, or obliga
tion between the man and the entire community,
no such thing as a contract with society, no obliga
tion at Common Law upon ' each ' to do anything in
particular for ' all,' has ever been recognized by the
Judges of the land. ' The man's liability to the com
munity must be a matter of public or statute law.'
Essays in tyranny made in this country have often
been inspired by the essentially anti-English idea
that a ' general warrant,' issued by society or the
State, is good at Common Law against the individual.
In money matters, Tudors and Stuarts sought to
make good a sweeping obligation, an indefinite moral
duty on the freeman to contribute hard cash to the
King's exchequer, as when basing exaction of ship-
money on extension and development of a dubious

184 A MEMOIR OF LORD BRAMWELL
local charge existing at the Cinque Ports. There
never was any Common Law obligation upon
British subjects to give the King, or society, or
' the State ' — if ' the State ' has any definite mean
ing on British soil — any of their goods in particular.
Their service in keeping the peace or defending the
realm the King could claim, but not their goods.*
If Brown and Smith, by the man who represents
them in Parliament, agree to give the King a speci
fied sum, well and good, so long as they believe
that the sum asked for will be spent in the way
specified, to the advantage of the King, Brown, and
Smith. In recent years all legislative devices for
depriving freemen of that ' full and absolute property
in their goods and estate,' asserted by the Petition
of Right, have been heralded in by arguments that
an indefinite contract, a comprehensive bargain with
society, binds certain people, property-owners and
employers, to be generous, altruistic to tenants and
working men. Should the existence of any legal
obligation of the sort be denied, Common Law,
contract, individual freedom, the right of property,
are denounced as immoral, inhuman, anti-social, the
which is not new, being merely a very practical re
habilitation, for the profit of one class, of that myth
jus naturale or lex naturalis which Hobbes, Rous
seau, and even Adam Smith, built upon. A still
older and more elastic fiction, the lex eterna of the
scholastic and patristic school of political economists,
* For centuries Customs duties (levying benevolences on a
man's goods simply because he happens to land at a seaport)
seem to have been levied upon foreigners only.

CONTRACT 'MADE IN GERMANY' 185
reappears as the ' economic morality ' or ' ideal
good ' of latter-day collectivists and idealists. These
developments represent a subtle but sinister corrup
tion of the text of English jurisprudence, traces of
which, found in Adam Smith's writings, may be
attributed to Renaissance influences, Sir Thomas
More's among others. The moral philosophy of
the eighteenth century is anti-English and imported.
The Puritan movement, on its secular side, was
partly a revolt against intrusion of bastard Latin
ethics which accompanied Renaissance new learning.
Much England owes to that dogged determination
among Puritan jurists and Parliamentarians, among
the Whig leaders in 1688 also, to revert to English
ideas, English precedents, English law. On these
foundations solely Edmund Burke built. Although
metaphysicians might ignore such a mere detail, one
defect of Rousseau's contrat was that, as Hume,
Bentham, Austin, Mill, and Brougham pointed out,
it really never had any existence. For Lord Bram
well, bargains or contracts, as well as implied con
tracts arising therefrom, always concerned actual
English people, Smith and Brown, or partners. He
could at least get material evidence about Smith's or
Brown's doings. They were human beings, not
nebulae. The note of the new jurisprudence inspired after
1880 by sympathy with ' some kind ' of Socialism, is
a denial of national or purely English origin for vital
parts of English law and equity. Erudite German
Chauvinists became the fashionable authorities at
English Universities for the view that Englishmen

186 A MEMOIR OF LORD BRAMWELL
imported, in foreign garb, sundry priceless safe
guards of their liberties. German writers — having
lost their tails, conscious that their own countrymen
failed to preserve ancient liberties and fueros which
Englishmen did long manage to preserve — naturally
try to prove that it is not possible to evolve either
the spirit or the letter of modern law from popular
notions of right, embodied in tribal or local procedure,
custom, tradition, maxim ; jurists of the pickel-haube
school have a corresponding interest in magnifying
the missionary influence, and pan- European ascen
dancy of Roman Law. Suggestions from these
learned men are that our ' crowner's quest ' is
derived from the Roman fiscus, and trial by jury
from the prerogatives of Frankish Kings ; who, it is
not alleged knew the Digest by heart, but at all
events were not Englishmen. It has never been
explained how a thirteenth century Sheriff, or Knight
of Assize in Wiltshire or Northumberland, acquired
any extensive knowledge of, or affection for, Roman
Law. Early Judges of the curia regis, nearly all
ecclesiastics, presumably had much abstract respect
for what travelled clerks brought from Bologna or
Paris. Considerable independence of Rome and of
Roman ideas in civil matters was nevertheless quite
possible to an English Bishop, even before the arch
traitor Becket's extremely informal execution for high
treason. Many of the King's Judges after Evesham
were as much Englishmen first and sons of the
Church afterwards as sundry Roman Catholics were
when the Armada came lumbering up the Channel.
Native English stuff, Borough law and Englishry,

CONTRACT MUST ' KNOW LTS PLACE' 187
local procedure, custom, precept, proverb, were in
the texture of English Common Law before Nolumus
leges AnglicB mutare was shouted at Merton, and
re-echoed not solely by laymen with long swords
who didn't know much Latin, but by English
ecclesiastics who did, and doubtless pronounced it
all wrong. Habits or characteristics last acquired
are the first to be dropped. After Edward III.'s
time our Judges begin to drop or shed, bit by bit,
many mischievous encrustations derived from the
Jus genti or the Decretals. What survived and was
formative, fruitful, seems to have been that part
which was national, English. Roman jurists ingeni
ously manufactured law for suitors ; English Judges
compiled rules for the better enforcement of individual
claims of right — claims which the fierce English
themselves had first made respectable. Although
Lord Bramwell quotes the very words of Digest 50
in a Times letter about Employers' Liability, it is
impossible to evolve either from Roman or from
Canon Law that conception of contract which he
and his predecessors in comparatively modern times
wrought out. The process of evolution is barred at
once by the fact that for centuries (until the so-called
Conservative leaders repudiated liberty of bargain
in 1897) every kind of bargain, except the English
kind, was liable to be varied or upset for elastic,
capricious reasons. Few people argued with Lord
Bramwell about contract ; it was much easier not to
read, or to forget, what he said and wrote ; when
they did they had to fling Scaevola or Aquinas at
his head.

188 A MEMOIR OF LORD BRAMWELL
Developing perhaps more rapidly after his death,
yet distinctly traversing Lord Bramwell's judg
ments and opinions on and off the bench, profes
sorial attacks upon the conception of contract held
and applied by the great masters of English Common
Law, efforts to infuse an ethical spirit into it, to
impose fanciful tests, based on some lofty ' ideal
of the common good ' — all admitting the element
of arbitrary caprice — are necessary concomitants ol
that Socialism of the housetops which marched with
the Socialism of the street after 1880. The last
word of the new jurisprudence is that, ' if there is to
be any law at all, contract must be taught to know
its place.'* This had to be said, because, as T. H.
Green, F. C. Montague, and others, frankly pointed
out, some kind of Socialism, or Idealism, and Liberty
cannot thrive side by side. The Government
official who is to enforce right-mindedness or com
pulsory altruism, to compel obedience to concep
tions of social justice and ' Liberty according to
Green, 't obviously must possess despotic powers,
absolute authority to crush civil freedom and indi
vidual rights. ' If there is to be any law at all'
designed to confiscate, nationalize, or municipalize
legally acquired private property, alleged to be used
in an anti-social way, or ' any law ' withdrawing
certain objects from the individualistic sphere, on
high ethical grounds, the essentially English idea of
contract must be repudiated, every contract, bargain,
* Pollock and Maitland's ' History of English Law before
Edward I.,' Book II., p. 230.
t R. B. Wallace in Progressive Review.

'SWAP' OR STIPULATIO? 189
or agreement enforceable at Common Law being
primarily an assertion of three acquired (not
' natural ') rights, or franchises, inherited, as it so
happens, by every individual British and American
citizen: (i) A general right to individual freedom ;
(2) the consequential right of property, giving
particular title to the subject matter of contract, and
to the consideration ; (3) the right of free barter,
free exchange within the four seas. Notwithstand
ing that the law has ever been much concerned with
it, contract* does not seem to be originally the
* A distinguished living authority has expressed in the
earlier editions of a famous book a wish to meet with ' a satis
factory definition of contract,' and straightway goes wool
gathering in the most learned and painstaking way, after the
origin of the practice. In later editions of his work, inspired
by Continental Katheder Socialists of the pickel-haube persuasion,
he writes about ' a positive sanction for the expectation of good
faith. . . .' That, it seems, is the griind iverk of contract.
Ultimately we do get a translation of Rechtsverhaltniss. Yet
contract might very well have been invented by freemen them
selves, without waiting for any suggestions from the jurists at
all. When the primeval A said to the primeval B, ' Let's
swop,' and B. said ' Done ' — although, like M. Jourdain, both
unaware that they were talking such a fine thing as legal
prose — they there and then unwittingly invented contract.
Tribunals and Judges do not come in at all for a long time
after that. Bracton, proud of having painfully mastered
among the schoolmen in Paris what Isidore of Seville knew
about Roman law, tells A and B how Justinian suggested
that primeval ' swop ' of theirs. Still later Dr. Hunter
attributes to A and B flattering familiarity with the nexus and
the stipulatio. Finally, Sir Henry Maine's enthusiasm for the
splendid symmetry and precision of Roman jurisprudence con
strained him to aver that Englishmen in respect to contract
copied Roman models ; only for that it might have been

190 A MEMOIR OF LORD BRAMWELL
creation of jurists, courts of law, or 'the State.'
Contracts must have preceded tribunals, or laws
deemed a coincidence, two communities of freemen, up to a
certain point, evolving spontaneously, and necessarily, an
analogous practice from analogous social and economic con
ditions — civil freedom, security of property, a high sense of
civic responsibility and desire to exchange utilities. Trying
to derive from causa the primitive English ' conception ' of
' consideration ' — a thing which the English contract always
has, but Roman contract had not — would be unnecessary if it
could be agreed that contracting Englishmen were quite
capable of inventing * consideration ' for themselves, and so did
— probably because they chose to. When Englishmen came
before the Courts with disputes about contract, somehow
' consideration ' was in the affair, so the Judges dealt with it.
They didn't invent it nor add it. Vital, radical severance
between Roman and English conceptions of contract is made
by the political or governmental circumstance, that while
Roman jurists had to meet the case of suitors, some of whom
were dependent, only partially free, English contract always
connotes bargaining between freemen, a distinction which
became of great importance, again, when canonists, finding
the jus genti very stretchable indeed, developed their concep
tion of contract on Roman, never on rude English lines. It
would be interesting to trace how the slow, sure decay of
Roman freedom gradually modified, depraved the Roman
view. As the true legal spirit, once present with the people,
dies out, partisans of jus genti oust the defenders of jus civile,
capricious interference by the Praetor and other grand persons
turns Roman contract into a matter of departmental dispensa
tion, instead of a phase in free barter. As the Roman citizen
more and more approaches the status of slave, one sees how
contract has its root in freedom ; the paternal red-tape view,
the benevolent slave-owner's view of contract becomes natural,
indispensable. Theorizing about the origin of contract, tracing the practice
back to Roman sources or to Continental codes slavishly
modelled on Roman examples, are not unlike the domestic

THE KLNG AS UMPIRE 191
made to guide tribunals, and would doubtless still
continue to be made (only enforced in a different
way) should tribunals and laws perish. As between
individual freemen, capable and of full age, they are
selfish private arrangements for each man's supposed
benefit. Parties to contract do not start by acknow
ledging any obligation upon them to guess what ex
pectation ' the State,' the community, or society has
made about their good faith or Rechtsverhaltniss.
Barter is one of the primitive human acts ; definition
of the terms of barter brings us to contract ; disputes
about terms bring in the vast legal literature on the
subject for which one has immense respect. Meta
physicians have had their say about contract ; lawyers,
and one cannot blame them, have made a pro
fessional mystery of it ; Roman jurists, with some
reason, riveted all sorts of elaborate pedantries on to
it. Contract itself is no thing of mystery ; English
contract law is based on an estimate of the average
bad faith prevailing among bargainers. If men kept
faith without being made to, courts of law would
have little to do. One very useful question English
law puts — but not before the law is called in by
fiction that the family doctor brings the baby in his pocket.
Doctors do not ' solely,' nor even ' mainly,' originate babies,
although much concerned with them at an early stage. Men
who had matters to bargain about did not wait until tribunals
were established, and had fully assimilated the Institutes, and
then say to each other, ' Here's a Court in working order ;
suppose we go in and make a contract.' The origin of British
drinking customs is not the Licensing Acts, nor even the
public-house. The origin of the British practice of clothes-
wearing is not to be sought in that ' institution,' tailors' shops.

192 A MEMOIR OF LORD BRAMWELL
A and B as umpire — is, ' Did you both understand
what you meant?' Since the vast majority of men
are unable to explain in their native tongue what
they do mean, legal fortunes have been earned,
libraries have been filled, in trying to find out for
them. So soon as parol contracts take the place of
solemn religious ceremonial, the King's Courts, the
tribunals which supersede the King's justiciary, and,
finally, ' the law,' intervene, each as recognized
arbitrator — umpire first, champion afterwards — not
for society, not because the community has part or
lot in the matter, but for the contracting individuals,
each of whom thinks he has right on his side, and
wants to get justice from the King without fighting
for it. The contracting man aggrieved would, in
the absence of tribunals, do his best to kill, disable,
or punish the other who had not kept to his bar
gain, a recourse abandoned long ago when the arti
ficial arbitrament of the King's justice came to be
willingly substituted by contracting individuals for
the primeval, brutal, ' natural ' arbitrament of force.
Every time they plead contracting individuals ex
press actually (not figuratively, as Rousseau con
ceived) their willingness to abide by the Court's
award. When the elder of the tribe, the wise man,
the earldorman, the justiciary, and at last the Judge,
decides the case and enforces his decision, he simply
represents the litigant who is in the right. He there
upon virtually does what the stronger of the two
contracting parties would do were tribunals non
existent ; only, the Judge is guided by rules (called

PERMEATLON 193
after awhile ' laws '), not by the mere desire to
possess. There is here no question of tribunals at
any stage claiming authority to interfere as repre
sentatives of some general interest in contract
vested in the regulative community, society, or
' State.' English law, like the rider in ^Esop's
fable, having once been placed in the saddle, called
in by disputants about contract, has rightly kept
its grip upon contract ; has even tried to moralize
it, although never to the extent metaphysicians or
idealists recommend.
For centuries English Judges were (United States
Judges always have been) the least ambitious, least
concerned about A's or B's Rechtsverhaltniss ; hesi
tated to graft upon contract pompous artificialities
and flashy variations out of deference to the Latins ;
instead adapted their rulings to the circumstances
of the common people who probably ' invented ' con
tract. Lord Bramwell never embittered discussion by
his contribution to it ; did not speak to the public
ex cathedra ; always in a most unassuming way ; in
open debate, with pen in hand, was as patiently
considerate and generous as he used to be on the
, bench, and just as the honest man can never quite
shake off a preconception that the first-comer is
honest,* he imagined that every controversialist
* ' Queen's Bench,
'May 13, 1881.
' My dear Bramwell,
' Our common friend St. Paul, in that interesting com
position which you thought rigmarole, said that he " spoke as
J3

194 A MEMOIR OF LORD BRAMWELL
must be as sincere a devotee of truth as he was
himself. His letters to the press and other protests
about certain matters show indirectly how popular
impulses had begun to react upon jurisprudence,
evolving, among University professors, and here
and there within the legal profession, tepidly
anarchical views. The plasticity of the legal, and
even the judicial, mind in regard to general rules
of law is often forgotten, certainly by the British
public, who in respect to the fundamentals of
Common Law and Equity probably imagine that
nollumus consuetudines Anglicz mutare holds good.
Certain latter - day theories of contract clashed
altogether with those which he sets forth, unpre
tendingly, as the plain law of the land — virtually
the embodiment of English ideas. It proves nothing
to call the view one prefers English, the opposite
view un-English. Ideas about Equity, about rights
and wrongs, which influenced jurists and moulded
decisions of the Courts in De Lacy's, Raleighe's,
Coke's, Mansfield's day, were English, so also were
the ideas which after 1880 arose to confound Lord
Bramwell's stalwart counsel. In each instance
forces valid and potent in the self-governing com
munity make their imprint upon that plastic medium,
a fool " on one occasion. So did I, and I am ashamed and
penitent. ' Ever yours, ' Coleridge.'
A note in Lord Bramwell's handwriting appears on the
margin of this letter :
' This was very magnanimous. I had told him he was un
just to somebody, I forget whom.'

' ENGLLSH IDEAS ' 195
Common Law. In each instance there is correlation
of legal maxims and judicial rulings to actual popular
beliefs. Yet since even the most enlightened of
Continental monarchs, councillors, judges, neglected
to safeguard popular liberties in the Courts, never
establishing or asserting a Common Law, never
devising a workaday equivalent for that priceless
English word 'reasonable,'* since that misfortune
for human freedom was largely due to the formalist's
contempt for popular or national beliefs about
justice — to a snobbish preference for that grand
classical thing Roman law — since insidious but
methodical attacks upon what may very well be
called Lord Bramwell's position come from a school
inspired by foreign prison-made notions, f fashionable
* No word in the language is more illustrious than this one.
From those early times when feudal dues were limited at
Common Law because not ' reasonable,' down to Lord Esher's
judgment in Hawke v. Dunn, the word 'reasonable' holds the
field. It is no question-begging term, but is the last word of
impartiality, learning and common-sense, interpreting trust
worthy information. The best human beings can do. The
judicial systems of the world _ might be divided into those
which never knew the word ' reasonable ' and so decayed, and
those which had it and so flourished.
t During debate on a Workmen's Compensation Bill, July,
1897, Mr. R. B. Haldane bade the House of Commons remem
ber that ' the doctrine of common employment ' is not to be
found in any Continental system of jurisprudence, and rightly,
for no such a ' doctrine ' exists, neither in our own country nor
elsewhere. What was novel was the argument that English
jurists ought to take example in respect to Common Law from
France, Germany, Spain, Greece, etc.
Here is a passage from a letter to Lord Bramwell dated
November 22, 1881 :
13—2

196 A MEMOIR OF LORD BRAMWELL
at our Universities of late years, the essentially
' English ' bent of Lord Bramwell's mind is worth
dwelling upon.
Never given to gushing about English freedom
(although, if he had lived in the old troubled times,
likely enough he would have died for it fearlessly),
he argues for freedom in the abstract in his plain
way when insisting that freedom of contract, liberty
to make bargains, is the corner-stone of the social,
industrial, economic edifice, when in letters of May,
1878, of June, 1880, in speech to Liberty and Pro
perty Defence League, November, 1882, he describes
as ' most mischievous and outrageous ' the proposal
then talked of (actually embodied, at the dictation
of London ' labour leaders ' and strike-brokers, in
the Ministerial Bills of 1894 and 1897) to deprive
workmen of liberty to make or to refuse, as they
thought proper, contracts relating to their labour.
The expression ' freedom of contract ' may be in a
sense misleading or trappy, the syllable ' free '
suggesting that unless both parties are ideally free
— independent of any strong motive or inclination
to accept the terms offered — bargaining ought not
to be permitted by 'the State.' At all events, it is
argued, there must be perfect equality ; one party
' . . . But there is one point on which I think sufficient
stress has not been laid, which has made your judicial position
(in my opinion) unique ; it is your strong loyalty to English
law, and at the same time your complete freedom from techni
cality and your unfettered originality of thought. . . .
' Yours very sincerely,
'Arthur Cohen.'

'DURESS,' REAL AND IMPLIED 197
must be no more constrained than the other. Argu
ments from ' defenders of freedom of contract ' seem
to mean, not that either party to a bargain can be,
or ought to be, ideally ' free ' to reject the terms, but
that British subjects and citizens of the United
States,* of full age, have inherited full liberty to
decide whether they will accept, refuse, or vary
agreements enforceable at Common Law.
Mental confusion due to the expression ' freedom
of contract ' may be traced through economic legisla
tion and discussion thereof from 1870 to 1897. It
was often asked : ' Can the starving worker, con
tracting with the wealthy employer, ever be said to
be really "free"? . . . Were Irish tenants and
Scottish Crofters "free" to contract with their land
lords? . . . Your boasted "freedom of contract"
does not exist now,'f etc. Here one finds a reminis-
* ' The respective colonies are entitled to the Common Law
of England, and to all the rights, liberties, and immunities of
free and natural born subjects within the realm of England.' —
Declaration of Rights made by American Congress, October 14,
1774- t Arnold Toynbee, 'Industrial Revolution,' p." 216, wrote :
' Between men who are unequal in material wealth there can
be no freedom of contract. . . .' To test the value of this pro
position, one has only to become a millionaire and then try to
get a hansom cabman to contract to drive one down to the
Derby and back for half a crown. On May 17, 1897, a Secre
tary of State said in the House of Commons : ' . . . There is
no such thing as freedom of contract in this country or any
other. . . .'
Mr. John Coppen, April 10, 1886, wrote from Staines to the
Economist asking for a Leasehold Enfranchisement Act, because
in that vicinity ' on many estates freeholders will not sell,
therefore freedom of contract does not exist. . . .'

198 A MEMOIR OF LORD BRAMWELL
cence of ' duress,' or perhaps of the legal maxim
that there ought to be an ' alternative ' to accept
ance of a contract. Constructive ' duress ' is indeed
the main argument for recent agrarian and labour
legislation. Mr. Gladstone had to invent it on
behalf of Irish tenants in 1881. Certainly, if a man
says to another : ' Agree to sell me your house for £5,
and I will not cut off your leg ' ; or, ' Spare my life,
and I will give you my purse,' those are contracts,
but voidable at Common Law, since one of the
parties was coerced under duress, and had no
alternative but to accept, or make the offer. The
stays and guy-ropes of English law well converge
on this point. ' Duress ' of the person vitiates con
tracts, for the law knows nothing of agreements
outside that paddock where the law ranges. If you
believe that a man intends not to cheat, but to kill
you, you are both outlawed for the moment and
you may kill him. You and he will certainly not
exchange 'sufficient consideration.' Agreements
enforceable at Common Law refer mostly to money
matters, the exchange of utilities, etc. — matters not
likely to cause life and death struggles (which are
beyond the cognizance of civil process). What is
often forgotten is that if either party to a possible
contract happens to be ' free,' in the sense of being
'indifferent,' no contract is ever made. In other
words, unless both freemen are ' unfree,' to the extent
of being influenced by some strong constraining
motive (such as the value they set upon the subject
matter of agreement or upon the consideration), no
contract is ever made. The claim, by opponents of

LIBERTY TO MAKE BARGAINS 199
freedom of contract, that Parliament should create
equality for buyer and seller — that one should have
no stronger motive, no more inclination towards the
course of action proposed, than the other — threatens
a reductio ad absurdum, since if buyer and seller
were equally indifferent each would name a fancy
consideration, and neither would accept it ; * while
if both buyer and seller were equally constrained,
had no alternative but to deal, another see-saw
would result : they could never fix on any suffi
cient consideration.
* Landlords and employers of labour are never free when
bargaining with tenants or with workmen. The fact that
real, although indirect, coercion is exercised on employers by
workmen in many trades (as, for instance, in the case of slate
quarrymen), owing to the trade unionists' monopoly of labour,
is no argument against unrestricted bargaining between em
ployers and employed. ' Liberty to make bargains ' is perhaps
a better phrase than ' freedom of contract.'

[ 200 ]

CHAPTER VII.
LAND TENURE AND CONTRACT.
Letters to Times and Economist asserting contractual relation
between English landlords and tenants — Impetus to con
troversy given by ' Progress and Poverty,' and by Irish
Land Acts — Non-Irish Land Question between i860 and
1880 — Effect of hostile legislation on ' security ' and on
investment of capital — Queer agrarian ideas brought out
in Times correspondence — Messrs. Hardcastle, McBlank,
Chamberlain and Gee on ' real owner,' ' State autocracy,'
' waste of manors,' ' tenure by poverty,' etc. — The late
Henry George's propaganda in this country — Replies
thereto, and uneasy interest therein, 1880-85 — Results in
other English-speaking lands — Letter to Industrial Re
muneration Conference of 1883.
A Times letter, February 6, 1879 — the last para
graph especially — indicates that Lord Bramwell did
not consider English land tenure faultless, nor refuse
to admit that tenants sometimes make dreadfully
bad bargains on paper ; but he believed an English
man who made a bargain ought to show his fellow-
Englishmen that he could stick to his word. The
New Morality, rather in embryo in 1879, replied to
Lord Bramwell that society's moral mission was to
find reasons why men should not stick to their
words.

'MIND WHAT YOU ARE ABOUT' 201
' Forfeiture of Leases.
' . . . A man takes a lease of a piece of land, agrees to lay
out thousands of pounds in building on it, enters into a variety
of agreements in relation to land and houses, and this among
them — that for any breach of any agreement, however trifling,
however reparable, however easily compensated in money, the
landlord may avoid the lease and the lessee lose the land and
the money he has laid out on it. I say that this is incredible.
It is incredible that it should be to the advantage of lessor or
lessee to enter into such bargains. Nevertheless it is true. I
agree with one of your correspondents that there is not one
lease in ten where the landlord has not had the option of
forfeiture. ' Of course, so soon as this state of things is made public
there is a cry for Parliamentary interference. The Legislature
is to prevent foolish bargains in future, and set aside those
already made. I send this to express a doubt whether the
Legislature should interfere. As to future leases, I suppose it
would not be asked that lessors and lessees should be forbidden
to enter into any bargain they thought fit, however unreason
able. To forbid that would be to violate a rule which cannot
be better expressed than it is in the Times of yesterday : " Free
dom of contract is so far fixed as a general principle that the
very clearest case ought to be made out for every departure
from it." The utmost that could be done for the future would
be to enact that, unless specially provided to the contrary,
provisions causing the forfeiture of a lease should only have
that effect when the mischief was irreparable and money would
not compensate, or to that effect. In other words, that people
should not be taken to mean what they say, but something
else. Whether that is desirable I doubt. People had better
be taught prudence by suffering from the want of it. As to
the past, the proposal to interfere with existing leases is simply
a proposal to disregard the homely rule that " a bargain is a
bargain." Why should not the Legislature at once say that
no bargain should be binding if some Court or tribunal thought
it unreasonable ? It would be difficult to legislate on the sub
ject without injustice. Suppose a man is owner of a row of

202 A MEMOIR OF LORD BRAMWELL
residential houses. Suppose for the keeping up of its character
he has made the lessee of one agree that he will not turn it
into a beershop, on pain of forfeiture ; and suppose the lessee
does. What damage is the lessor to get ? He could not get,
according to the present law, the damage to the whole row ;
that would be too remote. If it was enacted that he should,
there would be injustice to the lessee. Further, the lessor
would have a question to try on which there might be different
opinions, viz., how much are his damages? On this he might
be beaten and have to pay costs. As it is, he has made him
self safe, and safe without a question. Still further, if such an
alteration in the law would raise the value of leases (and unless
it would it would be useless), it would diminish the value of
reversions. Even if not, why should the whole profit go to
the lessees ? After all, " a bargain is a bargain." The lessee
has entered into it. Maybe it is a foolish one, and one which
the lessor ought not to have exacted. But he has, and it
seems to me that for the Legislature to rescind it savours
of a questionable agrarianism. It may be said, Is there then
no remedy ? I see none, except by the consent of the two
parties to the bargain — the lessor and the lessee. They can
consent now by surrender of the old lease and grant of a new.
Possibly power might be given to some tribunal to extend this
power to lessors and lessees with limited interests. 'B.
' February 3 . '

By October, 1881, the momentum of Mr. Glad
stone's triumphant Irish legislation was not quite
exhausted. The Economist on the 29th, reviewing
the prospects of land legislation for Great Britain,
especially condemned the Land Bill of the Farmers'
Alliance ; it would deprive landlords of proprietorial
rights without compensation, check improvements,
diminish interest in estates, convert contracts of
hiring into partition of ownership ; a Land Court on

MORALITY OF WELSHING 203
the Irish model was defensible in 'the Irish Alsatia,'
not in England, etc., etc.
Commenting on letters from Mr. W. Bear and
the Duke of Argyll, Lord Bramwell wrote in the
Economist, December 3, 1881 :
' Tenants' Rights.
' Mr. Bear says that " Mr. Gladstone has declared that a
tenant has a right to the whole interest in his improvements,"
and that the Duke of Argyll "maintains that a tenant has a
just claim to a portion of that value." Have these distinguished
persons said so ? If they have, I respectfully ask what they
mean. The relation of landlord and tenant, in England at
least, is one of contract. That contract may have all its terms
stated in words spoken or written, or it may have them partly
expressed only, leaving the rest to be supplied by the law or
custom. As where the contract in words expressed simply
creates a tenancy from year to year, and the law adds that to
determine it six months' notice must be given, and custom
adds that the tenant shall be paid for ploughings, dressings,
etc., how has landlord or tenant a just claim or right against
the other for anything not in the contract or added to it by law
or custom ? Whatever is not so is as much out of the contract
as though it was expressly negatived.
' Suppose a tenant takes a farm, and expressly agrees with
the landlord that he will improve and not claim compensation.
Has he a right or claim to any ? It may be said no one would
be so foolish. But, if it is foolish, it is done daily ; and for a
good reason, viz., that the landlord, in consideration thereof,
takes less rent.
1 To go by steps — suppose the tenant does not agree to
improve, but agrees that if he does he will make no demand
for compensation. Has he then a "right or just claim" to
any ? It will, perhaps, be said he has none at law, but that
he has morally. What ! contrary to his bargain ? Suppose it
could be shown that the landlord had agreed to take less rent
because he knew he had an improving tenant, but declined to

204 A MEMOIR OF LORD BRAMWELL
have a question of compensation to try at the end of the lease.
Would the claim then be just ? Would there be a right, legal
or moral ? But is the contract to be interpreted, not by what
is in it, but by something outside it ?
' Now to the last step — suppose the contract is silent as to
compensation, is there then the just claim — the right ? It may
be it was not put down in writing, because both parties knew
the law added it. I cannot understand a right or just claim to
that which has not been agreed for, to that which practically
has been tacitly agreed should not exist.
' If it should be said that such agreements negativing a right
to compensation, either expressly or by the addition of legal
intendment or custom, are mischievous and should be annulled,
I deny it. Surely the parties are the best judges of what is
for their own good. Surely it is not unreasonable that land
lord and tenant should agree that rather than have a con
troversy about improvements the rent should be reduced, and
the improvements not paid for. To hold otherwise would be
to hold that the law can make better contracts for people than
they can for themselves. It would annul every building lease.
It would tempt every man who had agreed not to claim for
improvements to turn rogue, and, having held on favourable
terms on account of that agreement, to make a profit in spite
of it. All this is very trite and obvious. But, then, why is it
not borne in mind? Why is there a talk of "right" and
" just " claims, when the question should be, What have the
parties agreed ?
' If, indeed, the question were whether, in the absence of
express agreement to the contrary, the law should add an
agreement to compensate for improvements, it might be right
to say it should, though I doubt it. But that is not the ques
tion. The question is whether there is a right or just claim
which is not agreed for, and, negatively, is agreed shall not
exist. • g >
This letter was doubtless unanswerable, unless
one appealed from custom, law, contract, to a higher
standard ; December 10 W. A. H. so appealed.

RESULTS OF ' UNHAPPY IGNORANCE' 205
'Tenants' Rights.
' " B's " argument in your issue of last week is a pregnant
illustration of the mischievous educational influence of an
iniquitous law. The doctrine of English law by which a
landlord is allowed to appropriate the property of a tenant as
soon as it is mixed with or fixed to the soil has much to answer
for, and not least in its corrupting the conscience of land-owners
and their friends. If " B " would only revert to the fountains
pure and undefiled of Roman jurisprudence, he would get light
on some of his problems. Let me give him a case stated by
Scaevola. A landlord sued a tenant after he was out of his
farm for arrears of rent. The tenant pleaded that the claim
was against good conscience and fraudulent (exceptio doli mail)
. . . The tenant, not being bound by the terms of his lease to
do so, had nevertheless planted vines, and the land in conse
quence was let to the next tenant at an increased rent of 10
aurei a year. Was this a good answer to the action for rent ?
" Yes," was the answer of the jurist, "the landlord must pay
compensation to the tenant or he must go without his rent."
There can be little doubt that this also would have been the
answer of English law if it had not been for the unhappy
ignorance of the Judges. . . . The fathers of the common law
borrowed one-half of the Roman doctrine — that whatever is
fixed in the soil belongs to the owner of the soil, without the
corresponding half — that when that is done by a tenant the
landlord must pay the value of it. . . .
' . . . The real question of public policy is whether the law
ought to sanction a contract whereby a tenant binds himself
not to make improvements, or . . . that he shall receive no
consideration or compensation for improvements he may
execute. The farmers intend to ask the Legislature to make
such contracts illegal, and they can hardly fail to have the
support of the vast food-consuming population cooped up
within our small islands. < Yours < \\t a "H" '
An interesting letter, not only because of the
writer's plan for increasing the nation's food-supply

206 A MEMOIR OF LORD BRAMWELL
and his frank repudiation of the Liberal theory of
contract, but because it shows how modern Radical
or Socialist assailants of freedom and of the right
of property join hands, longo intervallo, with those
Roman jurists who found Roman freedom dead or
dying, and had to do their best under the circum
stances to secure generous treatment for a servile
class. On December 17 Lord Bramwell replied :
' Tenants' Rights.
' Your correspondent, W. A. H., in your paper of the 10th,
says that if I " would only revert to the fountains pure and
undefiled of Roman jurisprudence I should get light on some
of my problems." It certainly never occurred to me to revert
to a fountain to get light. Permit me to do what your corre
spondent calls "revert" to Adam Smith. The legislation
nearest to that proposed as to improvements by tenants are
the Truck Acts. Adam Smith gives them a doubtful approval,
but solely on the ground of the helplessness of the persons for
whose benefit they were passed. Are the farmers of England
in that condition ?
' It is a mistake to suppose that those who object to the pro
posed legislation do so on the ground that what is fixed in the
soil belongs to the owner of the soil. The objection would be
the same as to matters to which that rule does not apply. A
tenant may improve a house or land by what are called tenants'
fixtures. He may remove them at the end of his term ; he
has no right to leave them and make his landlord pay for them.
If the improvements are such that he has no right to remove,
he has equally no right to demand payment for them. The
reason is the same in both cases. He has not bargained for
such payment, and has no right to put an improvement on the
land to be paid for by the landlord without the landlord con
sents. The same thing would be equally true of a chattel.
Suppose a carriage was let for six months, and the hirer put
on a new and better lining, would it be common-sense or

HENRY GEORGE EPISODE 207
justice that the owner should be made to pay for it ? A
bargain is a bargain, and wherever there is no affirmative
bargain, there is by implication a negative bargain to the con
trary of the absent affirmative. Why should the tenant be
the judge of the propriety of the improvement ? If that is to
be decided by some tribunal, why should the landlord be sub
ject to a trial when the tenant has bargained to the contrary ?
Tenants bargain with their landlords that as a matter of right
they shall not be entitled to compensation for improvements. 'B.'
Probably the best -known of Lord Bramwell's
writings on the Land Question is his pamphlet pub
lished by the Liberty and Property Defence League
in 1883, 'Nationalization of Land: a Review of
Henry George's " Progress and Poverty." ' The wide
dissemination during the next few years of Henry
George's book (published in San Francisco, 1879,
in London, 1880), and finally the author's visit to
this country in 1884, gave specific direction for
awhile to ideas about land tenure deep-based upon
sentiments, most ancient, endowed with extra
ordinary vitality, such as class jealousy, envy of
persons apparently wealthier, more fortunate, happier
than their neighbours. These sentiments were em
bittered by the characteristic vices of land-ownership
(which always partly explain the personal note in the
attack upon landlordism) such as pride, extravagant
expenditure and display, irritating exclusiveness, etc.,
tempting loose thinkers to bestow their ' sympathy '
at random. Excluding the middle term, there re
mained the ominous political fact that extension of
the franchise in 1832 and 1868 had given con
siderable impetus to a revolutionary and anarchical

208 A MEMOIR OF LORD BRAMWELL
campaign against one form of property explicitly
safeguarded, in common with all other forms of
property, by legal covenant, prescription, etc.
Miscellaneous millionaires were scarce in 1880;
land, still the most conspicuous, tangible, concrete
kind of property in sight, was exalted by tradition
and popular imagination into the most enviable
kind. Land-owners — still believed to be well off — were
also suspected of the original sin of Toryism. The
important point was that the thing in dispute was
then deemed well worth fighting about. When a
supposed popular demand becomes too vague and
chaotic to be expressed by any other formula it is
said that 'the question is ripe for solution.' In
1880 (although land reform would 'keep') the
English, or rather non-Irish, Land Question was, in
an abstract sense, ripe for solution ; therefore a
thrilling book like ' Progress and Poverty,' described
by opponents as ' a model of logical and lucid
arrangement,' which induced many people to think
about land questions for the first time, was entitled
to large circulation. Just as 'authority' has had
its Hobbes, its Alison, its Croker, so plausible
talkers and writers have never been wanting,
eager to give logical or scientific sanction to funda
mental class hatreds and jealousies — often genuinely
hoodwinked by their own arguments, confirmed in
their honest hatred of injustice by the apparently
interested opposition they meet with. Among serious
economists, Mill had greatly encouraged abstract
revolutionary ideas about land tenure by his ' un-

BLISTERING AND LEECHING 209
earned increment ' theory ; it is a splendid phrase,
and the theory, when first revealed to the average
man, is as unanswerable as the Fair Trader's terrible
question : ' What is the use of the loaf being cheap
if the working-man has no money in his pocket to
buy it with ?'
The Irish Land Acts of 1870 and 1881 gave con
siderable stimulus to land agitation in Great Britain,
those of the public who took interest in such matters
seeing clearly enough- — although Mr. Gladstone's
partisans pretended not to see — that his Irish
agrarian policy had struck a blow at all titles, in
reality throwing the whole thing into the melting-
pot. Vague and random as were the ideas of
extreme land reformers, after 1881 the non-Irish
land agitation indirectly contributed to aggravate
'agricultural depression,' then becoming chronic.
Consciousness among land -owners that security
had been impaired, proposals for partial confisca
tion openly advocated by leading statesmen, coupled
with ever-increasing taxation, which fell first upon
tenants, checked the free application of capital to
agriculture,* and worked indelible economic mischief.
Analogous effects from analogous causes attract
more notice in such countries as Cuba, Peru, or the
* ' I believe we have no adequate conception of what the
amount of production might be from a limited ' (given ?)
' surface of land, provided the amount of capital was suffi
cient.' ... 'If you ' (British farmers) ' had abundance o
capital employed on your farms, and cultivated the soil with
the same skill that manufacturers put into their business, you
would . . .', etc. — Cobden, quoted by William Fowler, ' Cob-
den Club Essays,' second series.

210 A MEMOIR OF LORD BRAMWELL
Soudan, where, owing to insecurity of property or
bad laws, large tracts of agricultural land go out of
cultivation. For a quarter of a century after the
repeal of the Corn Laws, British farmers prospered
greatly, and farming land steadily rose in value.
Had it not been for blows struck at security for
Irish, English and Scottish land, and for property
in general, by Mr. Gladstone's economic legislation
after 1870, British agriculture might have adapted
itself to the new conditions produced by Free
Trade without friction, without permanent loss to
owners or occupiers.
Reproducing what happened when the Irish Land
Bills of 1870 and 1881 had to be fought, resistance
by English land-owners to destructive agrarian
proposals was impeded and weakened by the fact
that the Conservative party was historically pledged
to misunderstand the basis of political economy —
a supposed monopoly of their Liberal opponents.
Harassed land-owners and tenants turned to those
quack remedies which Lord Bramwell protested
against, such as Fair Trade, reduction of tithe
rent-charge, Railway Rates Acts, ' marking ' foreign
mutton chops, bimetallism, re-enactment of the usury
laws, stopgap doles from Imperial funds, and un
limited ' State ' interference, to heal the mischief
which Liberals who repudiated Liberal watchwords
— individual freedom and security of property — had
done to British agriculture.
One of the most interesting things brought out
by Lord Bramwell's press correspondence on this
subject is the extent of uncertainty, even among

DISSECTING A PHRASE 211
educated men, about the law applying to land tenure
in Great Britain.
For example, in a Times letter, May, 1883, Lord
Bramwell had dissected Mill's famous phrase ' un
earned increment :' he hated catch - words, and
thought this one. ' Unearned Increment.
' People are now asking for Acts of Parliament to forbid
whatever they disapprove of. One gentleman wants a law
to forbid the killing of lambs. I should like one to put a
stop to something much worse, viz., the making and uttering
of phrases, unless, indeed, licensed by competent inspectors.
They are often very mischievous. One was started some time
ago which led astray a number ofworthy people — " Fair Trade."
It was very taking. Trade is a good thing ; so is fairness. It
follows that, put together, they must make something very
good. In truth, something very bad was intended. Then we
have " a free breakfast-table." Well, a breakfast-table suggests
a pleasant, cheerful idea. Refreshed with sleep, clean, bright
cloth and crockery, smiling children round — or, what some
might prefer, a well-aired copy of the Times — then freedom is
good, and so a free breakfast-table is very good, and so people
have called for it. If the phrase had been dropped, and they
had been asked whether they preferred an income-tax or a tax
on beer to the duty on tea, few would have said " Yes."
' But there is a worse phrase invented by Mr. J. S. Mill,
who seems to have confused a love of his fellow-creatures with
a dislike of his superiors in rank and station. The phrase is
" unearned increment," as applied to the value of land and to
whom it should belong. Let us examine that phrase. " In
crement " is " increase," neither more nor less. " Unearned "
is " not earned " — a negative. Well, but all negatives are true
of anything, unless the affirmative is. A thing is unblue and
unhot, unless it is blue or hot. An increase is not earned
unless it is earned, it is unsought unless it was sought, un
expected unless expected, uncertain unless certain, and so on.
14—2

212 A MEMOIR OF LORD BRAMWELL
We may, therefore, leave out the negative " unearned " and all
other negatives, and consider the matter with only the word
" increase." Drop the phrase, which has misled a number of
right-minded people, and deal with the question thus : " To
whom is an increase in the value of a piece of land to belong ?"
The answer, I say, is obvious. " To the same person to whom
the increase in the value of any other property should belong,
and for the same reason — the owner." I can understand those
who deny the right of property, those who say "La propriete
c'est le vol." They think mankind would be happier if the
institution of private property was abolished. But how those
who admit the benefit of that institution can doubt to whom
an increase in the value of property should belong, whether
earned by the owner or not, I cannot understand. Why does
the institution of private property exist ? Because it is for the
good of the community. If not, it should be abolished some
how and on some terms. When it is abolished there will be
no question as to whom its increase in value should belong.
Meanwhile we will discuss that question on the assumption
that the institution of private property is good. But why is
it ? The answer is plain — because there will be more of the
good things of the world for division among the community
with that institution than without it. Each man will work
.harder for himself to acquire and improve them than he would
if the community at large had the fruits of his labour. But
this same reason shows that the increase in the value of land
or chattels should belong to their owner. It is idle to suppose
inquiry could be made into the cause of that increase and the
owner of the property have it if he had caused it — otherwise
not. Who would trouble himself to improve what he had if
the improvement involved an inquiry into whether he had
caused it ? Take a manufacturer of screws and bolts, whose
stock rose in value ^"1,000 because iron or coal rose. Would
he think it reasonable that this increase in value should be
taken from him because it was an "unearned increment"?
Would the screwmaker care to keep a stock of the " unearned
increment " if its value was to be taken from him, especially if
its " un-by-himself-caused decrement " was not made up to

THE A UTO CRA TLC ' ST A TE' 213
him when caused by a fall in iron or coal ? If this is true of
screws and bolts, why is it not of land? Is it because the
land-owner does not toil nor spin ? But he does. The debt of
this country to its land-owners is heavy. Our greatness and
the causes of our greatness do not begin in 1832. Our laws
and institutions had their origin long before, and are in great
part due to and now preserved, maintained, and administered,
and the country in great part governed, and well governed, by
men who happily are able to disregard the foolish notions of
the moment.
' Besides, it is especially untrue that the land has not been
improved by its owners. " Managed on the English system"
means improved by the owner. But, further, their case, as
their enemies put it, is that of the man of screws and bolts,
where the increase of value is not of his causing and is un
earned by him. The phrase is invidious and mischievous.
Let us drop it. Let the question be, " To whom is an increase
in the value of property, land or other, to belong ?" Common
sense will answer, " To the man most able and interested to
bring it about — its owner." 'B.
' P.S. — Does anyone propose to make good to its owner the
decrement in value land has suffered ?'
In the Times, May 22, 1883, Mr. J. A. Hardcastle,
after criticizing Lord Bramwell's objections to Mill's
phrase ' unearned increment,' thus rebuked the
assumption that increase in the value of land should
belong to English landlords as ' owners ' :
' ... It comes to this, then, that we have to inquire who
is " the owner." Doctrines which " B." must think most
revolutionary are to be found in a book he may have met with,
called " Blackstone's Commentaries" ; but I do not wish to go
further than to notice that the ultimate ownership of the State
in all kinds of property is the only justification for the imposi
tion of taxes, rates, and public charges of whatever descrip-

214 A MEMOLR OF LORD BRAMWELL
tion. . . .* In every case, except where the owner is also the
occupier, there are at least two owners to every plot of land.
... I should say of this phrase " owner," as applied to the
landlords, that it is, to use the words of your correspondent,
" invidious and mischievous " ; that it puts the landlords in a
false position, being, as they are, partners with their tenants ;
and that the sooner the landlords recognize this truth and
answer the question to whom an increase in the value of land
ought to go by admitting the just claims of their tenants, the
better, not only for those tenants, but for the landlords them
selves. . . .
'J. A. Hardcastle.
' 54, Queen's Gate Terrace, S.W.,
'May 1 8.'
A couple of days later Lord Bramwell replied :
' Unearned Increment.
' " A little learning is a dangerous thing." To judge from
Mr. Hardcastle's letter, worse than none, for he certainly would
be better without the little, the very little, he has got from
Blackstone. Mr. Hardcastle says : " Doctrines which ' B.'
must think most revolutionary are to be found in ' Blackstone's
Commentaries,' but (why ' but '?) I do not wish to go further
than to notice that the ultimate ownership of the State in all
kinds of property is the only justification for the imposition of
taxes, rates, and public charges of whatever description."
' Now, Blackstone does, indeed, teach that on " feudal prin
ciples," no doubt much revered by Mr. Hardcastle, " all the
land of the kingdom is supposed to be holden mediately or
immediately of the King." But Blackstone does not say any
thing so untrue as that that supposition in any way interferes
with or affects the use, benefit, or enjoyment of land by its
* Jevons, " The State in Relation," etc., p. 8, argues that
" taxation is one instance of a man's limited right to his own
property." Lord Bramwell once recommended this book to
friends of liberty and property. See p. 139.

LMPUTED PARTNERSHIP 215
owner. When he and his heirs fail it escheats, but till then
he has the full and entire property. And certainly Blackstone
does not teach that the State is the ultimate owner of chattels.
It is not in any sense. Though what is the meaning of the
" ultimate ownership " of what may be eaten or drunk or
otherwise consumed, I know not. Nor do I know, nor can I
guess, whence Mr. Hardcastle got the notion that " the ulti
mate ownership of the State in all kinds of property is the only
justification for the imposition of taxes, etc." It will be alarm
ing news to the Chancellor of the Exchequer — if he believes
it. I have just received a circular that comes so pleasantly
once a year, in which I am requested to state how much
income I have from foreign railways, with a view to the " im
position of a tax " on it. I suppose this State is not the owner
of a French railway. I am glad that Mr. Hardcastle does not
wish to go further than he says he does, but I beg to suggest
to him respectfully that he should not go so far.
' Your most obedient servant, 'B.
'May 24, 1883.'
Thus, one sees that a gentleman living at Queen's
Gate Terrace, S.W., presumably belonging to one
or two good clubs, accustomed to dine with people
of average West-End intelligence, probably destined
to become a Liberal Unionist in December, 1885,
was sincerely uncertain, in May, 1S83, whether
English land belonged to the people who had
bought or inherited it. The tenant who hired land
twenty years ago (or yesterday), might have acquired
a moral, legal, actual partnership or share in the
' estate.' Again, the formidable theory is disclosed
that ' the State ' in this country, as ultimate owner
of . all property, real and personal, has unlimited
power to ' impose ' taxes, rates, etc.
Early in 1885, Mr. John Morley, replying to Mr.

216 A MEMOIR OF LORD BRAMWELL
Wordsworth Donisthorpe in the Times, had shown
that Mill held almost as extreme views on land
tenure as Henry George himself. On February 16
Lord Bramwell returned to the subject :
' Mill's Political Economy.
' . . . The quotations from Mill in the Times of Saturday,
February 7 . . . also show that Mill could talk great nonsense.
That is a bold thing to say of that great oracle, but if you will
give me space I will convict him of it — or myself.
' He says . . . " There are some things which, if allowed to
be articles of commerce at all, cannot be prevented from being
monopolized articles. On all such the State has an acknow
ledged right to limit profits. Railways, for instance, are an
inevitable monopoly, and the State accordingly sets a legal
limit to the amount of railway fares." Now, this " article of
commerce " is not a monopoly. Johnson says a monopoly is
an exclusive right of selling. But though this is the etymolo
gical meaning, popularly it means all exclusive rights. Rail
ways and their owners have no exclusive rights. Everyone
may move himself and his goods by any other mode of con
veyance — canal, coach, waggon, ship, balloon, or bicycle. But
they prefer the railway. Why ? For the same reason that
for an advocate they prefer Sir H. James, for a surgeon Sir J.
Paget, for a physician Sir W. Gull or Sir Andrew Clark, for a
singer Patti, for a fiddler the prince of fiddlers, Joachim —
because of their excellence. This is why all who want them
selves or their goods carried use the railway, because of its
excellence. It is cheaper, faster, easier and safer than any
other mode of transport. This is not " monopoly," not an
exclusive right, but an exclusive goodness. Nor is it upon
any notion of its being a monopoly that the " State sets a legal
limit to the amount of railway fares." The undertakers of the
railway and the State make a bargain. The State says, " If
we give you powers to take the people's land, interfere with
highways, and so on, you must charge nothing beyond such
and such a sum." The undertakers agree. They have in no

' HUMANITY' AS FREEHOLDER 217
sense a " monopoly." There is nothing to prevent the State
empowering the making of a second railway alongside the first
— a thing the State too often does for want of knowing better,
and from not seeing that two railways, where only one is
wanted, involve a loss of part of the general wealth of the
community, though it comes out of particular pockets.
' Mill says, " On all such articles of commerce the State has
an acknowledged right to limit the profits." " Now, land is
one of these natural monopolies." . . . Let us look at what
seems to be the substance of his meaning. Who has ever
doubted the right of the State to deal with all property, land,
and chattels, monopoly or not, and with labour ? No one says
that the land-tax is immoral or unjust. No one doubts the
right of the State to expropriate the owner of land wanted for
the good of the public, making, as Mill says, " full compensa
tion." The same is true of chattels. The State does not
commonly lay a tax on specie or chattels, any more than on
land. But if the owner of them does not pay his taxes, he
will find the State make free with his chattels, and his land,
too, if necessary. So of labour. The hateful conscription is
within the State's rights. There can be no doubt that private
property is a State or social institution, and exists upon such
terms and conditions, and with such rights and liabilities, as
the State deems expedient for the good of its members. What
need, then, is there for the clap-trap that follows ? " The land
is the original inheritance of all mankind." " We hold that all
property in land is subject to the will of the State." Certainly,
and all other property. " Land not having been made by
man, but being the gift of Nature to the whole human race,
could only be appropriated by the consent, express or tacit, of
society, and society remains the interpreter of its own per
mission with power to make conditions ; with power even to
revoke its consent on giving due compensation to the interests
that it has allowed to grow up." This is better than Mr.
George, who says society could not do it, and who would give
no compensation. But what Mill says is true, and true not
only of land, but of all other property, and labour. But not
because it is a gift of Nature. Take land reclaimed from the

218 A MEMOLR OF LORD BRAMWELL
sea, which, if a gift of Nature, is a very poor one. Does any
one doubt that the State may deal with it as with any other
land ? Would Mill's reasoning be more fantastical in Holland
than here ?
' Mill says that if certain named very large estates in London
" belonged to the municipality of London their income would
probably suffice for the whole expense of the local government
of the capital." Probably, and for other purposes. " What,"
says he, " have the possessors done that this increase of wealth
produced by other people's labour and enterprise should fall
into their mouths as they sleep instead of being applied to the
public necessities of those who created it ? It is maintained,
therefore, by land reformers, that special taxation may justly
be levied upon land property up to, though not exceeding, this
unearned increase."
' This is the old " unearned increment " story. Why should
those who by their own exertions only have caused this incre
ment have the benefit of it ? What meritorious earning has
there been by them ? There has been no exertion of body or
mind by them to increase the value of these estates. It is
untrue that it has been created by their " labour or enterprise."
It would be more reasonable to give the increment to the
farmer, who has grown the food, and the railway-owners, who
have carried it, and enabled the added population to exist.
' Why does Mill invidiously name the large properties ? Is
not what is true of them equally true of small properties—
equally true of a property which by unearned increment has
become £1,000 from being £"1,000 ? But if this reasoning is
true of land, why is it not of other things— of railways, for
example, whose customers have increased while the share
holders were asleep — of gas companies, water companies ; of
persons who have held wheat or hops which have risen in value
owing to short crops ? Is the State prepared to make good
the loss which has befallen many owners by decrement in
value from no fault of theirs ? The truth is that Mill in his
hatred, not of gigantic incomes, but of those who possess them,
lost sight of the genuine principle that a thing is best improved
when its owner has the benefit, and that it would be impossible

' THE POOR MAN' AS FREEHOLDER 219
to inquire either as to land or other things how much of the
improvement was due to the owner, and how much to other
causes. I have no doubt, too, that he is wrong in saying that
the increase in value fell, as he elegantly and amiably expresses
it, into the mouths of the owners while they were asleep.
Wide enough awake have they been. He is wrong to say
there is a right to tax land " up to this unearned increase,"
and wrong to say " but not further." Unless justice and expe
diency require it, there is no right up to the increase ; if they
do require it, it is not limited to that.
' Mill is further quoted as saying that he cannot speak of
dividing common lands by any gentler name than robbery of
the poor. He proceeds, however, to say that it will be said
people cannot be robbed of what is not theirs, and that the
commons do not belong to the poor. " Certainly not ; our
masters have taken care of that ; they have taken care that
the poor shall not acquire property by custom as all other
classes have done." What he means by all other classes
" acquiring property by custom," I know not ; but why call it
robbery, if it is not robbery ; why, if the fault is that " our
masters " have prevented its acquisition, did not Mill content
himself with saying so ? Because he was not satisfied with
one piece of abuse only, but treated himself as well to the
word " robbery." I should be sorry to have it supposed I
denied or doubted Mill's great ability and honesty — so far as
temper and prejudice let him be honest ; but I have a strong
opinion that he was one of those who showed their love to
their fellow-creatures in general by hating a particular class of
them. ' The quotation I have referred to, " The land is the general
inheritance of mankind, and is the gift of Nature to the whole
human race," may seem to give countenance to the wonderful
assertion that " every man was born into the world with a
right to a part of the land of his birth." Is he ? When is he
to take possession ? At twenty-one ? What is to keep him
meanwhile ? Here is a set-off. Is he to have a piece of land
in prairie condition ? No ; doubtless improved. Here is
another set-off. Is he to have the advantage of the roads and

220 A MEMOLR OF LORD BRAMWELL
bridges, and other conveniences that have been made ? . . .
If the right is a right at all, it is a right against the whole
world from having been born at all. . . . Directly it is said to
be ' a right against ' a particular State, there is a recognition of
that State and its laws. Rights are what those laws give.'
How ragged were the notions prevalent, even
among politicians with a future before them, so late
as November, 1885, is shown by Mr. J. Chamber
lain's speech, Dudley Road Board School, Birming
ham, November 9, just before the General Election.
' It is well,' said he, ' that we should have the facts.
. . . What has been the poor man's portion ? . . .
where landlords have been powerful and altogether
independent of public opinion, they have been able
to enclose land without any Act of Parliament at
all. . . .' Lord Bramwell thus de-coded Mr.
Chamberlain's further ideas in a Times letter,
November 12, 1885 :
' Mr. Chamberlain and the Land Question.
' You report Mr. Chamberlain as having said at Birmingham
on Monday last that " in the old days, 100 years ago, there
were immense tracts of waste and common land all over the
country. I dare say it is a good thing that these lands should
be cultivated, but you should remember that when they were
not brought under cultivation they added very greatly to the
comfort and the happiness and the prosperity of the poor in
the neighbourhood in which they were placed. The poor
people had rights over these commons ; they were able to get
fuel, they were able to cut turf, they were able to support
sometimes a cow, sometimes it was geese or poultry, and in
that way they were able to add to their small incomes, and
made altogether a tolerable livelihood. Well, between the
years 1800 and 1845, in a landlords' Parliament, in which the
land-owners had almost paramount influence, there were no

DR Y LIGHT 221

fewer than 2,000 private Acts of Parliament passed for the
enclosure of these commons, and 7,000,000 of acres were thus
enclosed — 7,000,000 acres that previously belonged to the
community, and over which there were public rights, became
private property."
' Save that it is true that the Acts were passed and the
enclosures made, and that it was a good thing that they should
be cultivated, the whole of the above is untrue, every part of
it. The land did not belong to the community in any sense ;
there were no public rights over it except roads and paths ; the
poor people had no rights over these commons, none to get
fuel, cut turf, nor support the cow, geese, or poultry.
' I do not know whether Mr. Chamberlain used the words on
purpose ; he says they " were able " to do these things. Very
likely, and did. Trespasses and encroachments on commons
cannot be guarded against. It is well known that people
living on large commons were the most lawless and ill-behaved
in the kingdom. Good-natured people would not object to
geese or poultry on the common, but rights in the poor people
there were none. The commons and wastes belonged to the
owners of the soil ; the rights of common, pasturage, turbary,
and others were in owners of property, land-owners, and their
tenants in respect of their land-ownership. Enclosures have
indeed been made, and the enclosed lands divided among those
who had rights to and over them. These enclosures have been
most beneficial to the community, turning waste into produc
tive land. To no class have they been more beneficial than to
the " poor." A vast quantity of land has been put into a
condition in which labour can be employed on it. No labour
was employed on commons and wastes.
' You report Mr. Chamberlain also to have said : " Over and
above these legal enclosures, there have been a great number
for which there has been no legal sanction. In cases where
landlords have been powerful and altogether independent of
public opinion, they have been able to enclose land without any
Act of Parliament ; and accordingly you will find in the country
districts that roadside land has been taken, that corners of land
have been added to great estates, and that little village greens

222 A MEMOIR OF LORD BRAMWELL
have been taken up and have become private property." " The
interests of the poor have been altogether forgotten." He does
not understand why the poor man who takes a turnip should
go to prison for seven days, and why the greater thief should
be able to steal from the community a common or common
land. ' This is also untrue. No doubt strips of land by the sides
of roads have been taken in and added to the old enclosures.
But the strips did not belong to the community, and the
enclosures have not been made where they would have inter
fered with public or private rights — rights of way or rights of
common. I do not say never, but as a practice. Where are
or were the village greens of which Mr. Chamberlain speaks ?
Let him name some to begin with — say a dozen. Conduct
such as described would soon have found a village Hampden
to resent it with the willing help of a solicitor and jury. The
" poor " man has no rights over these strips. When he has a
cow, or pig, or pony he cannot — in fact, does not — turn out on
them, for the things would be impounded as being on the high
ways without anyone in charge of them. These strips no
doubt add to the pleasing appearance of the road, but they are
of use only to tramps and others with their tents and vans,
to the considerable prejudice of neighbouring fences and, as I
have heard, hen-roosts. I say nothing of Mr. Chamberlain's
language or motives ; I only write to you to correct his mis
statements. « your 0bedient servant,
' Bramwell.'
At Evesham, November 16, Mr. J. Chamberlain
replied :
' Lord Bramwell is known as a very able lawyer, and also
as one of the most dogmatic and arbitrary judges that ever sat
on the Bench. . . . He has contradicted me with a strength
of language and intolerance peculiarly his own.'
Then he read an extract from J. S. Mill's ' Disser
tations ' (which Mr. J. Morley apparently had
furnished him with in the interval), adding :

FIRST BOADICEA, CHAP. I. 223
' I venture to say we shall have to teach Lord Bramwell,
and men like him, that there are rights of the poor, as sacred
as, etc'
On November 19 a Times leader said this speech
showed that ' Mr. Chamberlain knows as little of
Lord Bramwell's career as he does of the rights of
commoners.' Notwithstanding this newspaper con
troversy, the relations between the disputants became
cordial in subsequent years.
To other correspondents Lord Bramwell replied :
' Mr. Chamberlain on the Land Question.
' As you have thought Mr. Cook's letter worthy of insertion,
I ought to answer it. I suppose he is a barrister or solicitor.
I do not find his name in the " Law List " for 1881 — the latest
I have. I infer from that, and from his letter, that he is very
young. I should not have thought anyone was young enough
to put such a question as he has. Enclosure Acts were not
necessary as between land-owners and commoners on the one
hand and the public on the other. They were for the land
owners and commoners inter se. Any one unwilling commoner
could have prevented an enclosure. In the case of infants,
lunatics, or married women, consent could not be given to a
voluntary enclosure. Powers, indeed, were necessary to stop
up and divert roads. This is the answer to Mr. Cook's ques
tion. Mr. Cook is wrong in supposing that strips of land by a
highway-side are necessarily a part of it. Sometimes they are,
and sometimes they are not. It is downright silly to say their
owners have no rights over them. As to Mr. Dodd's letter, I
have no doubt that all that Sir H. Maine says is correct. But
he would be astonished to find himself quoted to show that
there was anything in any sense wrong in the Enclosure Acts.
The law as to commons has been in existence 300 years,
according even to Mr. Dodd's notions. I believe it was always
what it is. It is impossible to go further back ; we might as
well see what was the law tempore Boadicea.
' Your obedient servant,
' Bramwell.'

224 A MEMOIR OF LORD BRAMWELL
The public were in an attentive frame of mind at
the time, a General Election being to the fore.
Perhaps for that reason Lord Bramwell's account of
what the law is was read, and little has since been
heard of this myth about the rights of ' the poor ' in
the abstract, over the waste of manors, commons,
etc. Again, May 27, 1887, a letter in the Times
described economic effects of the prolonged attack,
legislative and polemical, upon landed property in
the United Kingdom ; how penal legislation and
open threats of further confiscation had checked
application of capital to British agriculture,
diminished employment and lowered wages ; virtu
ally a homily on Cobden's text, quoted by William
Fowler (p. 209), but brought up to date.
On June 1 Mr. H. D. McBlank (let us say), an
amiable and erudite economic Agnostic — unable,
after much searching of heart and wrestlings, to con
scientiously accept that subtle doctrinal statement
in the Petition of Right that ' it is the ancient and
indubitable right of every freeman that he hath
a full and absolute property in his goods and estates '
— wrote to the Times, pointing out, kindly but firmly,
that they erred who described certain great Dukes
and other persons as ' owners ' or proprietors of land.
On June 3, 1887, Lord Bramwell wrote to the
Times :
'Mr. McBlank says in his letter to you: "No private
person can have property or absolute ownership in land ; such
property or absolute ownership resides exclusively in the State,
as represented by the Crown. The greatest Dukes are nothing

THE CROWN AS LANDLORD 225
but tenants of the Crown, and the State has a perfect right to
prescribe the terms on which it will allow tenants to enjoy its
property." This, so far as England is concerned, is wholly
wrong and misleading. Technically, those who hold of nobody
else are said to hold of the Crown, but practically they are
absolute owners. Not only the greatest Dukes, but the
smallest owners, have the right to deal with their land in any
way they think fit, without any power in the Crown to inter
fere. If the owner in fee simple dies without any heirs, the
land escheats to the Crown. The owner could have disposed
of it, but did not, so the Crown takes it. If this prevents
absolute ownership in land by private persons, the same con
siderations prevent absolute ownership in personal property ;
for if a man dies intestate with none of kin, the Crown takes
his personalty. Will Mr. McBlank give an instance of any
thing the Crown can do on the fee simple of any subject ? If
it makes a fresh grant it can prescribe its terms, not otherwise.
Mr. McBlank's statement is mischievous, misleading, and so
incorrect that I am surprised that he should have made it.'
On June 13 a lengthy reply and protest against
the above (dated June 4) from Mr. McBlank
appeared in the Times. Blackstone, Digby, Little
ton, Comyn, Sir Martin Wright, and, lastly, the
much-maligned ' Mr. Joshua Williams,' were quoted
to show that (as Lord Bramwell said) all English
land is technically holden of the Crown. Mr.
McBlank added that Lord Bramwell's letter of the
3rd inst. conveyed one impression to legal-minded,
quite another to non-legal-minded, readers, and was
'quite misleading.' Some more really irrelevant
things were said about feudal tenure generally —
about power to devise land depending on statute,
not Common Law. The significant distinction
between the Crown's right to the reversion of real
and of personal estate, in default of heirs or kin,
15

226 A MEMOIR OF LORD BRAMWELL
was also pointed out. Finally, the fabulous claims
of the fabulous ' State ' vanished, the writer admitting
that the Crown can nowadays do nothing ' on the
fee simple of any subject.' On June 15 Lord
Bramwell replied :
' I said of Mr. McBlank's first letter that it was incorrect,
misleading, and mischievous. He has written to you a second
letter, in which he appeals to my candour whether I still think
his first letter incorrect, misleading, mischievous. This appeal
is made in terms so obliging to myself that it is with some
regret I say not that I think, but that I know, that his first
letter was incorrect, misleading, and mischievous.
' Mr. McBlank begins his second letter by saying I impugn
his statement that by the existing law of England property in,
or absolute ownership of, land resides exclusively in the Crown,
and that no private person can hold any higher interest in land
than a tenancy in fee simple, or perpetual lease, and he cites
a number of authorities to prove that this is the law. I never
said anything to the contrary. So far from it, I expressly said
that " technically those who hold of nobody else are said to
hold of the Crown." The statement I did impugn was that
"the State has a perfect right to prescribe the terms on which
it will allow tenants to enjoy its property." This is what I
impeached, and do impeach, as incorrect, misleading, mis
chievous. Mr. McBlank in his second letter admits the in
correctness, for he says : " Tenants in fee simple have now, by
the consent of the Crown and statute, acquired property or
absolute property in their ' estates ' ... the Crown can no longer
interfere with them." Is that the same thing as what he said
before, viz., that "the State has a perfect right to prescribe
the terms on which it will allow tenants to enjoy its property" ?
Is it not a direct contradiction of it ? Mr. McBlank says he
was not addressing himself to a substantial, but to a technical
matter. But why, then, did he say that "the State has a
perfect right to prescribe the terms," as above ? . This is
incorrect and misleading. It encourages attacks on property,
and is therefore mischievous.' N

MR. GEORGE OF AMERICA 227
The following refers to some views not unlike
Mr. Chamberlain's, Mr. Hardcastle's, and Mr.
McBlank's, expressed in the Times by a Welsh
agitator : ' 17, Cadogan Place,
'July 8, 1888.
' Dear  ,
' I do not think you wrote the article on Gee's last
letter. Whether you did or not, I think Gee was not suffi
ciently castigated. I showed that it is not true that a man
cannot by law have as large an estate in land as Nature will
give him — as large as he can in a chattel. Gee had said that
the estate a man can hold is short of this. He was wrong.
He does not deny what I said, but shifts his ground, and says
that there was a time when tenure of land involved services,
dues, etc. ; but they have been got rid of and the land grabbed.
So he, Gee, would take the land, or do something to it. To
this there are three answers or remarks : First, what took
place was turning vexatious feudal tenures into free and
common socage. That took place over two hundred years
ago — long enough for any title. Would Gee take the land
from a building society on account of a change in the law two
hundred years ago ? Second, if he is in any sense in the right
it would go to show, not that the land should be taken, not
that it has been grabbed, but that the burthens should be re-
imposed. Third, he says that they were dishonestly got rid
of, the landed gentry giving no equivalent. The burthens
were vexatious and mischievous. It should be remembered
that about sixty years before this the law imposed on land the
burthen of maintenance of the poor — a deal more onerous. Do
pitch into him ; I can't. ' Ever yours,
' Bramwell.'
Mr. George raised the temperature of the
existing yeast-pot of ideas. Land reformers saw
that here was an ally gifted with all the fasci-
15—2

228 A MEMOIR OF LORD BRAMWELL
nating originality of the conventional American
tourist. ' Progress and Poverty ' had the success
of a new American lemon-squeezer, can-opener, or
religion ; while it was further good-naturedly taken
for granted that the author was an original writer,
sincere, impassioned, and profoundly touched by the
hardships of city workers, by the evils of that nine
teenth-century poverty which, lying at our very
doors, puzzled and disillusionized two free and
wealthy nations.*
* Perhaps Mr. Henry George's strongest point has been
his consistent and workmanlike use of the authority of the
Almighty as a sort of putty to stop up chinks, knot-holes, and
weak spots in his argument. This new polemical device has
been terribly overdone since, the Second Person of the Trinity
being specially relied upon of quite recent years by sex-
novelists and pamphleteers anxious to attract attention to
themselves. In 1880-84 Henry George's imitation of Beecher's
and Talmage's breezy blasphemies was distinctly new in this
country. He writes (' Social Problems,' pp. 282, 286, 288) :
' It is the evident intent of the Creator that land values
should be the subject of taxation, that rent should be utilized
for the benefit of the entire community. . . . When we con
sider the law of rent . . . the human mind catches glimpses
of the Master Workman. . . . By making land private pro
perty we defy the Creator's social laws,' etc.
In July, 1893, Dr. William Smart, LL.D., writing from
Queen Margaret College, Glasgow, in the International Journal of
Ethics, about ' The Place of Industry in the Social Organism,'
improved on this as follows :
' . . . Ethics and economics are now recognized to have
such close relations that . . . the new economist must look
at man primarily as a spiritual being, and must look at all
men as spiritual beings. In considering the world of working
persons, we must take . . . the standpoint of the Almighty
Himself.'

NOBODY, AS FREEHOLDER 229
Mill, by asserting a claim to ' the land ' on behalf
of ' the poor ' (which presumably would include
the poor of all nations), by his saying, in ' Disser
tations and Discussions,' that 'land is the original
inheritance of mankind,' the gift of Nature to the
whole human race, had at first sight anticipated
Mr. George. Apart from the fact that ' a gift of
Nature ' is a rather depressing lay phrase, too often
applied to a taste for playing the fiddle or to the
potato crop, Mill spoilt everything by insisting that
' due compensation ' must be paid to holders of
vested interests in land. Other land reformers had
declared that the farmers had the best title ; others,
that the agricultural labourers, the peasantry, ought
to be seized of the fee simple in place of actual
owners, so called. Henry George proclaimed, in
the name of the Most High, that nobody had any
right to private property in land. Obviously
' nobody ' excluded English landlords ; thus the
economic theatre was empty, swept and garnished.
In 1883 'Nationalization of Land,' a review of
Mr. Henry George's ' Progress and Poverty,' by
Lord Bramwell, was published at the central offices
of the Liberty and Property Defence League.
' Nationalization of Land.
' Mr. George has, in his book called " Progress and Poverty,"
discovered that poverty and all its concomitants are in some
way or another engendered by progress itself. And he proves
it thus : " Go," he says, " into one of the new communities
where Anglo-Saxon vigour is first beginning the race of pro
gress, etc.,* and though you will find an absence of wealth,
* When I use this ' etc.,' I mean that I omit some of
Mr. George's eloquence.

230 A MEMOIR OF LORD BRAMWELL
you will find no beggars. The tramp "comes with the loco
motive, and almshouses and prisons are as surely the marks of
material progress as are costly dwellings, rich warehouses, and
magnificent chambers." Apparently, therefore, wealth, the
result of progress, is the cause of poverty. Now, Mr. George
might just as well say that the sugar hogshead at the grocer's
door has brought forth the flies and 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 the thriftless ? Does he not know that the reason they
are not found where Anglo-Saxon vigour is just beginning a
race of progress, is because the exercise of Anglo-Saxon vigour
is unpalatable to them ? Mr. George makes the common
mistake of those who boast the virtues of rural districts. Why
is there not a professional pickpocket in the small village ?
Because there is no scope for his talents ; 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.
' But Mr. George is wrong when he says that " the tendency
of what we call material progress is in nowise to improve the
condition of the lowest class in the essentials of healthy, happy,
human life." That is untrue. The great bulk of the people
of this country are better off than ever they were. They have
more wages, more food, better homes (though far from good
enough in towns), and better clothing than ever they had.
Everything proves this. Statistics of every sort. The quan
tities consumed ; the quantities of luxuries — drink, tobacco.
The diminished number of paupers, the lessened poor rates.
Savings banks, benefit societies. What Mr. George means by
the lowest class is uncertain. If he means the tramp and
beggar, what he says is true, and would be if wealth was
multiplied a hundredfold. But it is untrue that increased
power of production and increased wealth have not benefited
the whole people. What has become of the increased food
and clothing ? Have those wicked rich people eaten ten times
what they ate before, and worn ten yards of clothing when

NATIONALIZATION 231
they formerly used one ? The complaint is untrue and silly.
No doubt there are many labourers with large families who
could eat, and eat advantageously, more than they do, and so
they could if all produce was divided in equal rations. One
may wish that every man had his poulet an pot. One may have
a misgiving as to whether it is not wrong that one man should
ride in his carriage, at a cost which would keep two or three
families, while at the same time as many families are underfed.
But till we are good enough to work as fairly for the benefit
of all as we do each for himself, we are not fit to be Socialists,
and the best thing for all is that each should work for himself,
though the result may be poverty and wealth, want and have.
' Mr. George, having made this discovery, proceeds to seek
the cause — why wealth produces poverty. One would think
that an obvious remedy would be to get rid of the wealth, to
destroy the locomotive and the great houses, and revert to the
log hut, in whose neighbourhood, Mr. George tells us, no
beggars are to be found. But Mr. George does not suggest
this. He first deals with some economic opinions that have
been entertained and promulgated by some of the best and
ablest men the world has seen, but which Mr. George de
nounces as blunders, the result of a perversion of intellect
scarcely honest.
' Mr. George proceeds to put his inquiry, which, he says, is,
" Why, in spite of increase in productive power, do wages tend
to a minimum, which will give but a bare living ?" He
assumes the truth of that proposition, which, however, is
untrue. For if land increases in productive power, there is
not, necessarily, the tendency he mentions. He then proceeds
to attack the proposition stated by Mill, and agreed to by all
economists but Mr. George, if he calls himself one, viz.,
" Industry is limited by capital. There can be no more in
dustry than is supplied by materials and food to eat. Self-
evident as it is, it is often forgotten that the people of a country
are maintained, and have their wants supplied, not by the pro
duce of present labour, but by past." Not so, says Mr. George,
with an enviable self-confidence, to feel half which one would
be content to be half as wrong. " How," says he, " can that

232 A MEMOIR OF LORD BRAMWELL
be, if capital is stored labour ? How can it be that it existed
before labour? And consider the case of the naked savage
who lives on shell-fish and fruit, etc." Of course, nobody
ever denied that there must have been a time when labour
preceded capital. What Mill affirms is not in relation to naked
savages living on shell-fish, but in relation to modern highly
complex civilization. Let us examine some of Mr. George's
arguments to prove, as he says, that " wages, instead of being
drawn from capital, are, in reality, drawn from the product of
the labour for which they are paid." "See," says he, "the
case of a ship which grows in value from day to day while
being built. Has the builder lost any of his capital ? No ;
there it is on the increased value of the ship." But the ship
is not built of sovereigns or dollars ; nor have the workmen
fed on the latter. It is built of materials which have been
saved or stored, and the workmen are fed and clothed on and
with material saved and stored. Mr. George would reason
less ill if he could eliminate money from men's transactions
and suppose them done by barter. Let us take one of his new
communities where Anglo-Saxon vigour is at work. An Anglo-
Saxon goes to a settler for work. " Yes, there are three trees
to be cut down, but I shall have nothing to give you for six
months, when the timber-merchant buys of me." "Well," says
the workman, " but I want food and clothing ; meanwhile, let
us go to the timber-merchant." He is willing to take the timber,
but can't give the price or value till the house-builder buys,
which will be in six months. Then they go to the builder,
who has store of meat and wheat and clothing. He agrees to
advance it to the timber-merchant, who advances it to the
farmer, who advances it to the labourer, who labours. Does
Mr. George say that in this case capital has nothing to do with
setting labour to work ? But this is the case with all work in
civilized societies. It is the case where the capitalist finds the
ship, the weapons, and the food of the whale-fisher. Try it thus.
Suppose all the machinery in the world suddenly destroyed, or
all the stored food, what would become of labour ? " Oh, but,"
says George, " the grain thus held in reserve through the
machinery of exchange, and advances passed to the use of the

NATIONALIZATION 233
cultivators are set free, in effect, produced by the work done for
the next crop !" So the work for the next crop produces the
former crop. If so, the labourer ought to be paid for the pro
duction of two crops. Mr. George might say this is a ques
tion of words. But it is not ; it is a question of substance and
of things ; Mr. George, like many others, would reason better
if he used right words. Mr. George asks (chapter v.), " What,
then, are the functions of capital ?" He answers : " Capital
consists of wealth used for the procurement of more wealth,
or, as I think it may be defined, wealth in the course of
exchange. Capital, therefore, increases the power of wealth
to produce wealth." Why " therefore " ? — but even if so, as a
spade and a barrow are as much capital as a locomotive, the
admission goes a long way to show that capital sets labour to
work — but, in truth, Mr. George (Book III., chapter hi.)
answers himself. For he says : " There are three modes of
production, in one of which capital may, and in the other two
must, aid labour." Mr. George, having attacked the econo
mists about capital, next has a furious tilt at Malthus, and the
doctrine connected with his name. And it may well be that
the geometrical and arithmetical ratios cannot be justified.
But the main proposition is undoubtedly true, viz., that, left
undisturbed, population increases, and by increasing presses
on the means of subsistence. It is self-evident. It stares one
in the face. Why has North America its 70 or 80 millions of
European descent, but for this pressure ? Why do the Eastern
Americans go West ? Why do hundreds of thousands of
emigrants land on American shores yearly? Why does the
Chinaman eat the filth and garbage he does ? Not from
pressure on the means of subsistence, says Mr. George, for
100 men will produce more than 100 times what one man can.
Very likely, in certain cases. Ah, but, says Mr. George, and
100 times 100 men can produce more than 100 times what 100
men can. Well, this brings us to 10,000, and 100 times that
is a million, and then we have 100 millions, and then 10,000
millions, all producing more per head than their predecessors.
It does not prove this to show that the earth is not full, nor
the best use made of it. Besides, suppose it could maintain

234 A MEMOIR OF LORD BRAMWELL
the 10,000 millions, it could not maintain one hundred times
that number. What does Mr. George mean ? Why, there
would not be standing-room. It is idle to say that increase of
population does not press, will not eventually press on the
means of subsistence. It does ; we all know it, and, oddly
enough, it is in part the foundation of Mr. George's argument.
And the pressure is comparative, as most things are in this
world. Not a pressure that could not be borne, but that could
be lessened, and that has been lessened by a diminution of the
population through emigration. It is certain that in England,
at least, the average well-being of the population is greater
than ever it was. But suppose there had not been that emigra
tion, and suppose America had not been peopled, and sent us
food ! What would have been the condition of things ? Would
there have been no pressure on subsistence ? Could we have
produced that half of the wheat we consume which we now
import ? Some day America will be full. Mr. George admits
that there may be " small islands, such as Pitcairn's, cut off
from communication from the rest of the world, and from the
exchanges which are necessary to the improved modes of pro
duction resorted to as population becomes dense, which may
seem to offer examples in point. A moment's reflection, how
ever, will show that these exceptional cases are not in point."
Will it ? I have reflected all the time it took to read the
paragraph and to copy it, and that reflection has not shown
me that the case is not in point. It is. The world is Pitcairn's
Island enlarged. It would have been better if Mr. George
had shown why the case is not in point.
' Proceed to consider some of Mr. George's opinions, observ
ing in passing that he has got right notions on the theory of
rent. He agrees with Ricardo and Malthus, and owns and
shows that the increase of rent is not caused by the landowner,
but by the increasing wants of man — in short, by the pressure
of population on subsistence.
' Mr. George, in Book III., chapter iii., discusses whether
interest is " natural or equitable." And he deals with the case
of James and William and the plane. James has a plane
which it takes ten days to make, and which will last the 290

NATIONALIZATION 235
working days of the year. William wants the plane, and
agrees to give James for it an equally good plane at the end of
the year and a plank. Now, asks Mr. George, is that "natural
or equitable?" " See," says he, "the case at the end of the
year. James, having parted with his plane, occupies ten days
in making a new one, and then works for 2go days, at the end
of which he will get a new plane from William. James, there
fore, at the end of the year, will have done 290 days' work, and
possesses a new plane. But that would have been the case if
he had kept his own plane, worn it out in 2go days, and then
made a new plane in the remaining ten. Why, then, should
William give him anything, and so make his own condition
worse and James's better ?" Wonderful ! Mr. George thinks
the promise of a plane as good as a plane. But why put a
year ? Why not ten years ? Why should not the promise to
return the plane in ten years or a hundred be as good as the
plane itself ? Mr. George, however, seems to think, as well
as can be guessed from some hazy writing, that as a plane
might be exchanged for seed, and seed might, if put into the
ground, yield an increase not due wholly to labour ; therefore
a plane may perhaps be reasonably parted with on the terms
of getting back a plane and something more. The truth — the
common, plain sense — is, that the plane in hand at the begin
ning of the year is worth to William, in his opinion, and in
truth, more than a plane at the end of the year, or more than
a plane in the first ten days of the year. Like a sensible man,
he agrees to give more for it ; and, for corresponding reasons,
James will not let him have it unless he does. Does Mr. George
think that savings banks, building societies, and others, should
pay no interest ?
'Mr. George, in Book III., chapter iii., intituled "The
Statics of the Problem thus explained" — whatever that may
mean — says : " The increase of rent explains why wages and
interest do not increase. The cause which gives the land to
the land-owner is the cause which denies it to the labourer and
capitalist. That wages and interest are higher in new than in
old countries is not, as the standard economists say, because
Nature makes a greater return to the application of labour and

236 A MEMOIR OF LORD BRAMWELL
capital, but because land is cheaper." Cheaper than what?
I suppose than land elsewhere — in an old country. But what
is the meaning of " cheaper " ? It is not a question of pounds
or dollars. Land is cheaper when it does make "a greater
return to the application of labour and capital." And whether
it shall or not does not depend on the landlord, as, indeed,
Mr. George shows. If one man or ten, or perhaps a thousand
men, owned all the land in an isolated territory, they might fix
its price ; but, as it is, the price is fixed by Nature. A deal of
mischievous and dishonest nonsense has been talked about
landlordism. Rent exists in the nature of things, and would
exist in substance if we had an agrarian law to-morrow. If
one acre of land will produce four quarters of wheat, with the
same expenditure of labour and capital as will only produce
two quarters on another acre, and it is worth while to cultivate
the poorer acre (rentless, perhaps), the first acre will bear and
pay a rent of two quarters ; and if, on the agrarian division, it
fell to the lot of A. B., he would receive from it two quarters
as a return for his labour and capital, and two quarters in the
nature of rent. It is true, in a sense (not always, as Mr. George
says, but sometimes), that the increase of land values is at the
expense of the value of labour, but it is for a reason that no
legislation can prevent — viz., the pressure of population on
subsistence. Mr. George finishes this Book III. by saying :
" To see human beings in the most abject, etc., condition, you
must go, not to unfenced prairies, in the backwoods, etc., but
to the great cities, where the ownership of a little patch of land
is a great fortune." I have dealt with this before. Mr. George
might as well have added : but where wages are higher, and
the people better fed, clothed, and even housed, than else
where. 'Book IV., chapter iii., Mr. George says: "The effect of
labour-saving instruments will be to extend the demand."
Yes, if there are mouths to be fed, not otherwise — i.e., if popu
lation presses on subsistence. Because, but for that pressure,
but for an increase in the population, where productive powers
were doubled, and only half the land was wanted to feed the
population, the competition among the land-owners would reduce
rent to nothing.

NATIONALIZATION 237
' In Book VI. Mr. George gives the remedy for these evils.
He discusses other possible remedies than his own, and rejects
them. I notice one instance, for the sake of Mr. George's style
and language. He speaks of the " robbery involved in the pro
tective tariff of the United States." That is a word Mr. George
is very fond of. Whatever is not right in his judgment is not
only wrong, but dishonestly wrong — "robbery." Nobody
thinks worse of a protective tariff than I do, but I attribute its
existence to an honest want of knowing better — at least, in
many cases. Thiers was, and Bismarck is, a Protectionist.
Are they "robbers"? Are Mr. George's countrymen
"robbers"? Might not some people think the term might
be more reasonably applied to those who say, " We must make
the land common property," without compensation to present
owners, and who advocate its being done covertly, not openly.
" To do that would be a needless shock to the present customs
and habits of thought, which is to be avoided. Let the in
dividuals who now hold it (land) still retain, if they want to,
what they are pleased to call their land ; let them continue to
call it their land ; let them buy and sell and bequeath and
devise it. We may safely leave them the shell it we take the
kernel. It is not necessary to confiscate land ; it is only
necessary to confiscate rent." And this Mr. George proposes,
and without compensation. He inquires into the " justice of
the remedy." He says : " If we are all here by permission of
the Creator, we are all here with an equal title to the enjoy
ment of His bounty, with an equal right to the use of all that
Nature so impartially offers. The Almighty, who created the
earth for man, and man for the earth, has entailed it upon all
the generations of the children of men," etc. It is singular
what an acquaintance with the Creator's designs is shown by
writers of the stamp of Mr. George. One may be allowed a
respectful doubt whether what has so long existed and been
permitted was not intended, not that things have gone wrong
till Mr. George came to the rescue. At all events, it will be
admitted that Benevolence would approve that condition of
things which was most for the good of mankind. And if the
private ownership of land is so, we may well have it without

238 A MEMOIR OF LORD BRAMWELL
Mr. George's Land Act, to get rid of the entail he speaks of.
He says : " The poorest child born in London has as much
right to the estates of the Duke of Westminster as his eldest
son, and the puniest infant that comes wailing, etc., has as
much right to the Astor property as the Astors. And he is
robbed (Mr. George's favourite word) if the right is denied." I
am afraid Mr. George's notions of " right" are hazy. I will
not say that the man who catches fish or game, or gathers fruit,
has not a natural right to ,do it. Though Mr. George would
find it difficult to persuade his Patagonian, if he met the man
with the fish or the game, that he (the Patagonian) might not
in all right and reason take it. His conscience would not be
troubled any more than would be that of the Bedouin if he
eased Mr. George of a watch made by him with much labour.
However, be it that there are natural rights, that is in a state
of Nature, where there is nothing artificial. But men have
formed themselves into a social state ; all is artificial, and
nothing merely natural. In such a state, no rights ought to
exist but what are for the general good — all that are, should.
And what we have to consider is not any vapouring about
"the land being entailed by Providence, the decrees of the
Creator, puny infants coming wailing into the world in the
squalidest room of the most miserable tenement house," etc. ;
but whether private or separate property in land is for the good of the
community. Certainly there is rather a strong prima facie case
that it is, since it exists throughout the world. " Oh !" says
Mr. George, " tyranny, violence, and usurpation." He quotes
M. de Laveleye : "In all primitive societies the soil was the
joint property of the tribes, and was subject to periodical
distribution among all the families, so that each might live by
their labour, as Nature has ordained." And why is it not so
now ? Because we are not in a primitive state ; because we are
older and wiser and know better, as M. de Laveleye ought to
do. Periodical distribution ! Is it not absolutely certain that
a man will do better with a piece of land, will get more out of
it each year, if he has it for two years instead of one, for ten
years instead of two, and for all time instead of ten ? If the
profit of his care and labour will be his at some time, will he

NATIONALIZATION 239
not bestow them when otherwise he would not ? It cannot be
doubted. Tax him if you like, tax his rent, tax him ad valorem ;
but leave him enough to tempt him to improve. It is too
plain ; separate property in land, as in sheep and oxen, is for
the good of the community. And if so, the quantity that one
man may own can no more be limited than can the quantity of
sheep or oxen he may own, nor the use he shall make of it.
Have an agrarian law, give each man his share ; in ten years
the careful, skilful, and provident allottees would be the owners
of the share of the careless, unskilful, and improvident. And
it is for the general good it should be so.
' But even if labour alone gave property, the land-owner's
case is much better on Mr. George's principles than he admits.
Suppose by labour a piece of land was banked and enclosed
from the sea — made, in short. Not a part of the land
" originally entailed on the puniest," etc., Mr. George must
admit a right to it in the man whose labour made it. But
what is the difference between the case put and land in general,
except that in land in general there was before labour was put
on it what has been called the " prairie value " ? That is what,
if anything, was " entailed on the puniest," etc. Tax that —
confiscate that, if confiscation is right, but not the stored labour
which is on the land. Mr. George seems to admit this. What
would the tax be ? Something worth stealing, though not as
much as Mr. George thinks. But confiscation is not right.
Separate or private property in land is for the good of the
community, and should be respected like any other property,
and for the same reason. There is one passage in the book
that may be noticed. As far as it is intelligible it is, that as a
man belongs to himself, so his labour, when put in a concrete
form, belongs to him ; and that there can be no other natural
rights, as other rights are destructive of this. Perhaps ! as I
do not know what is meant. But then it would seem that the
man who has cut down and stored a hundred trees has inter
fered with my right, as great as his, to cut them down. How
ever, whatever is meant, I repeat we are concerned with social
not natural rights.
' Mr. George speaks of the " justice " of the remedy. Justice !

240 A MEMOIR OF LORD BRAMWELL
A man labours and saves, acquires a piece of land, perhaps
taken in payment of a bad debt, dies with the comforting belief
he has provided for his widow and orphans. Mr. George calls
it "justice " to confiscate it. Another man has been a member
of a building society, and built his house, and believes it was
his own. But Mr. George would charge him a heavy rent for
the land on which it stands, because " every patch of land has
become of great value." This is Mr. George's notion of
" justice." They are robbers, receivers of stolen goods, know
ing they are stolen, and can have no right themselves, nor give
any to the widow and orphan. No doubt, to confiscate land
and raise the public revenue out of it would be a fine thing for
all the community, save the land-owners. But so would con
fiscating chattels be a fine thing for all but chattel-owners, and
the confiscation of labour would be a splendid thing for all but
the labourer. It may be there is much to be said for the taxa
tion of land, and that a community would do well if it resolved
at the outset to raise its taxation exclusively from land. There
is much to be said for it, especially if the taxation is not so
excessive as to deprive the land-owner of all interest in improve
ment ; but when the law for ages has allowed private property
in land, to take that property from one man and leave property
in oxen and horses in another, because the land is stolen goods,
and its owner ought to know that — that, I say is "robbery,"
and repugnant to all notions of fairness. Mr. George does
not, indeed, propose to take all the rent. He would leave
enough to make it worth the while of land-owners to become
tax-collectors. Mr. George says : " In every civilized country
the value of the land, taken as a whole, is sufficient to bear the
entire expense of government." We flatter ourselves England
is a civilized country. If it is, this statement is untrue. The
whole agricultural rent, without abatement for collecting it,
would not defray those expenses. If the expense were so
borne, personal property would be untaxed, and Mr. George,
this friend of the poor and the wailing infant, would let the
Rothschilds and Astors go untaxed, while he filched the patch
of land got by the savings of hard work, which gave a bare
subsistence to the widow and orphan.

NATIONALLZATION 241
' I have now gone through the more prominent matters in
Mr. George's book. It 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 favourite words, and he
seems to think he can set the world right and teach it — if he
bawls " robbery " loud enough — to practise it. . . .'
On January 3, 1884, Henry George came to
London, it was said to lecture there, also in twenty-
five principal cities of the United Kingdom. On
Wednesday, January 9, a vast audience in St.
James's Hall heard Mr. George. Mr. Labou-
chere, M.P., always watchful to mitigate any
tendencies destructive of West - End civilization,
presided. Mr. George then stated that land
nationalization would provide pensions of £ 100 a
year for 200,000 widows, Queen Victoria among
others ; but the pivotal passage in his speech was,
' The land of England, by virtue of a grant from
the living God, belongs to the whole people of
England.' In the Times of January 23, 1884, Lord Bram
well wrote :
' Mr. George in Plain English.
' If a man reclaims a piece of land, " subdues it," cuts down
useless trees, extirpates bushes and weeds, removes stones, and
16

242 A MEMOIR OF LORD BRAMWELL
makes it valuable, Mr. George says it ought to be taken from
him, and that where a man has toiled hard, denied himself and
his wife and children luxuries and amusements, belonged to a
building society, and become possessed of land with a house
on it, he, and his widow and orphans, if he dies, ought to be
treated in the same way. Mr. George says there ought to be
no compensation, because all property in land has been obtained
by " force or fraud." Mr. George puts a limitation on the
eighth commandment, and reads it : " Thou shalt not steal any
thing but land." At least this is dealing with Mr. George in
his own style. He cannot understand how anyone can differ
from him, without being thief or robber. I think more charitably
of Mr. George, and that he is only perversely and wonderfully
mistaken. 'His reason for so dealing with land-owners is that "the
land of England is God's gift to the people of England." It is
astonishing what an intimacy is shown with the Divine counsels
by those who would justify what has hitherto been considered
murder and robbery. Mr. Parnell's followers justify their
proceedings because the land of Ireland is God's gift to the
Irish people. If it were fit subject for discussion, one might
suggest that what exists was intended, and not that the inten
tion has been frustrated by man, and that it needed Mr. George
to set matters right. But I will not rely on this, contenting
myself with denying Mr. George's postulate. He relies on
nothing else. And reasonably, if right in his postulate and his
inferences from it. For we have at once a Divine direction
which we should obey, even if we cannot see the reason of it.
But if we may suppose that what was intended is for our good,
then we may well inquire what that is. The answer is easy.
He who makes a thing valuable to mankind, whether it is
land or chattels, should have it for his reward to encourage
him and others to do the same. Private and separate owner
ship of everything improvable is necessary to insure its
improvement. A late distinguished man, Sir W. Siemens,
said that if any invention lay in the gutter, it should be given
to a separate owner that he might have an interest in its
furtherance and development. All the fish on our coasts and

A GIFT FROM ON HIGH 243
in our rivers are as much given to the people of England as
the land of England. Would Mr. George take from the
fisherman all he caught ? Should he say that there labour has
been expended, has it not been on the land ? What is land
without its improvements? Should Mr. George admit that
those who improve should enjoy for a time as their reward, he
gives up his principle. For if he once admits that separate
ownership may exist for a time, he must admit it may for any
and all time. The State gives me a piece of land for ten years
at a certain rent, or no rent, and I am to improve it. I say,
Give it me for fifty years, and I will improve it more and pay
more rent. Would it not be wise in the State to agree, and,
having agreed, just to keep its word ? And if this is true as
to fifty years, is it not true for all time ? Has Mr. George
ever considered the cruel hardship and wrong that would
happen if his opinions prevailed ? Two men have each worked
hard, saved money under the same law, invested under the
same law, one in railway stock, the other in land, and while
the first keeps his property, the other has his taken from him
and is called " rogue." Why does not Mr. George go to his
native country and preach the rights of the red Indians, to
whom " the land of America was God's gift " ? What would
he do with the land when he got it ? Farm it ? Substitute
the State for the struggling farmer ? Or let it ? And if let
it, for how long ? If for a year, why not for longer, if it would
produce more ? And if for a longer time, why not for all
time — for "a consideration"? Mr. George's proposal is
nonsense. Unfortunately, a good many people have been
misled by it. ' Your obedient servant, 'B.'

Perhaps the first among advanced reformers,
sympathizing with Mill's land tenure views, to pro
test against Henry George's rehash of ancient
delusions was Mr. Frederic Harrison, who during
the year 1883 denounced them to audiences in Edin-
16 — 2

244 A MEMOIR OF LORD BRAMWELL
burgh, Newcastle, and at the London Industrial
Remuneration Conference. He disconcerted land
nationalizers by pointing out that coal was as much
a necessary of life — and so ex hypothesi the common
property of the human race — as land. On May 16,
1883, he wrote to Lord Bramwell :
' . . . I did not say properly the other night how much I
enjoyed your criticism on Henry George, and my scanty thanks
to you for sending it recur again to my mind, now that I have
been reading it again along with some other pieces on that
question. I always have felt that George's book is a mass of
sophistry, and your knife has pricked home every windbag that
it has touched. On every point you seem to hit, and, indeed,
kill. I hope, however, you will do more, and make a further
criticism of the whole work. The book, though a mass of
sophistry in reasoning, and distorted by prejudice and passion,
is still at this moment a very great and dangerous social force
in England and in America ; and its power is derived from
this, that it eloquently displays the appalling facts of actual
social injustice and suffering, and in the next place it does offer
some remedy, wild as I think that to be. Those who criticize
George will never undo the evil George is producing until they
admit the disease to be remedied, and offer some remedy of
their own ; and I hold that the key to George's influence lies
in the truth that proprietary rights in the soil need some other
social justification than such as applies to movables. Land is
a unique form of property, and requires special reasoning of its
own. This is a chapter still to be added to your criticism, and
also, I think, to the excellent reasoning of B. in the Times.'
' The single tax,' although never so exhaustively
examined as Mr. Ignatius Donelly's famous Bacon-
Shakespeare cryptogram, did produce a great many
' answers ' to ' Progress and Poverty,' indicating
the alarm created by Henry George's campaign,

'A DANGEROUS SOCIAL FORCE ' 245
1880-85.* Whether they were or were, not works
of supererogation is difficult to say. One has a
feeling that thinkers 'carried away' by Henry
George were very unlikely to read replies to him.
If not a formidable political economist, he was cer
tainly a formidable bogie.
On the whole, criticism of his book and propa-
* From the Duke of Argyll, Nineteenth Century, vol. xv.,
p. 537 ; from Professor R. T. Ely, in ' University Studies,'
vol. iii. ; from Professor Fawcett, Macmillan's Magazine,
vol. xlviii., p. 182 ; from Samuel Smith, M.P., Contemporary ,
vol. xliv., p. 850 ; in Quarterly Review, vol. civ., p. 35 (generally
attributed to Mr. W. H. Mallock) ; in Edinburgh Review, vol.
clvii., p. 263 ; Dublin Review , vol. xcvii., p. 327 ; Banker's Maga
zine, vol. xliii., p. 401 ; Spectator, vol. lvii., p. 44 ; Saturday Re
view, etc. One of the most lengthy criticisms is the late Robert
Scott Moffatt's book, ' Mr. Henry George, the Orthodox,' deal
ing fully with George's attack upon Malthus — the one interest
ing thing in ' Progress and Poverty.' George, although not a
consistent Socialist, finds himself compelled, without knowing
why, to assail the Darwinian doctrine of the struggle for exist
ence which Malthus had an inkling of. One may note how all
attempts to construct a logical system on Socialistic lines lead
up to a collision with Darwin. Mr. Moffatt remarks ' that (in
1885) Henry George had become a great authority in this
country.' Wonders where he 'acquired his economic ideas.'
In 1896 it was once more admitted by Mr. George himself that
the single tax theory, and much of ' Progress and Poverty,'
are derived from ' The Elements of Political Science ' and
' The Theory of Human Progression,' published prior to 1855
by the late Patrick E. Dove, sometime of Craig ; genial, eccen
tric, and erudite ' Master of Ballantrae ' ; friend of Hugh
Miller, Blackie ; Volunteer Colonel, etc. Probably everything
in the way of misapplied metaphysics, which ought not to be
said, has been said already, in the most unreadable way, by
some gifted Scotsman or other.

246 A MEMOIR OF LORD BRAMWELL
ganda by Lord Bramwell and others seems to have
exercised in this country a ' conservative ' influence.
The disclosure of demands for sheer confiscation
caused many hesitating people to reflect. Serious
discussion of land tenure generally was rendered
more difficult. The land nationalization crusade,
however, ultimately smothered a good many pro
posals favoured by Radicals, such as leasehold
enfranchisement, ' State ' creation of peasant pro
prietorship, abolition of entail, etc. Why turn
leaseholder or tenant into a freeholder if the hold
ing bestowed on him was to be nationalized next
day? Just as Henry George 'overtrumped' pro
posals from land-reformers of the school of Mill,
Cairns, etc., so his 'single tax' was itself over
trumped by those Socialists, Fabians, etc., who now
and then demanded, not the nationalization of land
merely, but of all capital, savings bank deposits,
railways, factories, the means of production, dis
tribution, and exchange also. The gradual decay
of public interest in English land tenure contro
versies after 1885 seems, however, to have been
mainly due to the discovery that English farming
on any terms was becoming unprofitable, and that
agricultural land was hardly worth confiscating.
That great maxim of natural jurisprudence, ' It is
no sin to rob an apparently rich man,' implies a
negative popular maxim to the contrary of the above
affirmative, viz., that if a man ceases to be rich, it is
rather a shame to rob him — a somewhat unheroic
termination to controversy about a question ' ripe for
solution ' in 1880. At that time extension of power

A DEADLY IDEA ' 247
to the landless majority seemed to many people to
threaten in England and Wales (as in Ireland and
northern Scotland) confiscation by statute of pro
perty held by a minority under the artificial, fictitious,
and by no means impregnable, sanction of legal
covenant. The waxing and waning of interest in
English agricultural land questions between 1870
and 1890 suggests the case of two Eastern poten
tates going to war with each other about the posses
sion of a diamond, and finding in the thick of the
struggle that the diamond was all the time paste.*
* In other English-speaking countries Henry George's
propaganda seems to have left permanent traces. In Novem
ber, 1895, the Hon. L. F. Heydon, M.L.C. for the colony of
New South Wales, told the Institute of Bankers, Sydney :
' Henry George landed on our shores in 1890. In two
months after he had left us we suffered from the great mari
time strike, singular in its universality and in the ideas which
caused it, chiefly those taught by Henry George and Bellamy.
Two fatal ideas — first, that there existed some simple political
specific, mere enactment of which would render earth a para
dise for all men, without necessity for individual effort or self-
denial ; second, that the working classes, being necessary to
all production, could coerce society, and so at any time enact
that paradise. In 1891 and 1892 followed the collapse of build
ing societies, in 1893 tne closing of banks, disasters directly and
mainly due to disturbance of labour and discouragement of
capital caused by Henry George's and Bellamy's Socialistic
doctrines, and to depreciation of the selling value of land
caused by Henry George's special doctrine as to confiscation
of land. . . . The introduction of a deadly idea, which would
destroy many score of millions of pounds, and degrade, starve,
and destroy many hundreds and thousands of our poorer
brethren, is smiled upon. We set an active guard to oppose
importation of pests dangerous to human, animal, or even

248 A MEMOIR OF LORD BRAMWELL
In 1883 an Industrial Remuneration Conference
was held in London, and lasted two or three days.
The idea was to gauge, and perhaps direct, the
opinion of those advanced persons supposed to be
vegetable life. But against free importation of a doctrine more
destructive than phylloxera, anthrax, small-pox, cholera, or
than all the pests to all sorts of life added together, we appoint
no sort of quarantine whatever.
' Pre-eminent among destructive ideas I deem the teachings
of Henry George on land nationalization ; and I hold our
leaders of thought guilty of great laches in not having met and
repelled this danger at its first introduction among us.'
Of course, there is a good deal of the propter hoc fallacy about
all this. Before 1 890 Australian democracies had shown by their
tariff and land legislation that they were quite capable of effect
ing their own economic ruin without Henry George's help.
In the United States, spite of the fact that Americans quickly
took to describing Henry George as a played-out ' crank,' his
book and his propaganda touched the public conscience, and
whenever the public conscience is profoundly moved anywhere
in the United States, the nearest State Legislature tries to pass
a law designed to confiscate the wrong man's property. No
American citizen who understands business ever actually is
plundered ; the law is generally so badly drafted as to be un
intelligible ; with great forethought, machinery and trustworthy
officials to enforce it are never provided, so that a sharp
' attorney ' can always manoeuvre a wealthy client out of mis
chief. Nevertheless, Henry George's writings appealed to
that paradoxical and little-appreciated emotionalism which is
as valid a characteristic of the people of the United States as
shrewdness, energy, or brag. The statute-books of many
American States contain laws passed as ' concessions ' to
George's disciples — laws which have made the poor poorer,
the rich richer, wronged and impoverished ' little ' capitalists,
exalted and strengthened ' big ' capitalists, controllers of rings
and trusts, railway kings, etc.

QUAINT QUESTIONS 249
influential with working men — at the time hesitating
between old Individualist Radicalism and ' some
kind of Socialism.' A gentleman present moved
that Lord Bramwell (known as a wise and honest
Judge, careful about such matters) should be asked :
' Would the more general distribution of capital or
land . . . promote or impair the production of wealth
and the welfare of the community ?'
Fifteen years have made great changes. The
above question may seem an odd one to put to
anybody ; similar curiosity is nowadays rare. Pos
sibly Lord Bramwell's reply, made in all good faith,
helped to extinguish it. Since many of those inquirers
who gravely conferred about ' industrial remunera
tion' in 1883 are best tranquillized by being given
some new thing, more foolish than the old one, to
think and talk about, it is probable that the teaching
of Fabians, Social Democrats, Independent Labour
leaders, etc., has been the means of quenching
interest in half-and-half measures for ' promoting the
wealth and welfare ' of the community, such as ' the
more general distribution of capital and land ' by
those opportunist methods contemplated in the above
question. It was also asked, in parenthesis, whether ' the
State management of capital and land would pro
mote or impair the production of wealth and the
welfare of, etc. ?' — to all which Lord Bramwell
replied :
' . . . The general distribution of capital and land in a com
munity is the result of natural causes, and could be altered
only by legislation, which would be mischievous, and impair

250 A MEMOIR OF LORD BRAMWELL
the production of wealth and the welfare of the com
munity. ' There are two men — one born healthy, strong, intelligent,
industrious, thrifty ; the other sickly, weak, dull, idle, and
imprpvident. These two men will certainly be differently off
in life. So will their children and children's children, even if
the State should make itself heir to all deceased persons. One
of the two men will be poor, the other rich. How is a more
general distribution of land and capital among such to be
brought about ? Is the poor man to be made rich ? How ?
Is the rich man to be made less rich ? That can, indeed, be
done ; but can it be done by any means that would promote
the production of wealth and the welfare of the community ?
Certainly not !
' I know, of course, that a law might be made bringing
everything into hotchpot, and dividing the mass into equal
shares, one for each member of the community, which certainly
would produce a " more general distribution of land and capital ";
but I suppose no one contemplates this. For my own part, I
have no superstitious reverence for the institution of separate
or private property. Show to me that its abolition would be
for the general good, and I would vote for it, letting down the
present possessors gently. ... If that institution is to be
preserved, it would be useless to make such a distribution as
I have supposed. For at the end of six months there would
be a difference in the wealth of members of the community.
Some would have wasted their shares, some have increased
theirs (unless, indeed, that was forbidden, which would be
most disastrous), and it would result that some would be poor
and some rich. I cannot suppose, then, that a law directly
taking from those who have, and giving to those who want,
is expedient. But unless some such mischievous contrivance
is resorted to, there must be an inequality of conditions, and an
inequality in which there will be the very poor and the very
rich. I say, then, that there are no means by which there can
be a more general distribution of land and capital which would
promote the wealth and welfare of the community. . . .
' I do not say that nothing can be indirectly done to lessen

PROSPERITY B Y STA TUTE 251
the inequalities of conditions and improve that of the poor.
Heavy taxes might be put on successions which would allow
of the diminution of taxes that fall on the poor. Taxes which
fall on their luxuries, but which they will pay to the lessening
of their means for necessaries. The motive for saving in the
rich would be diminished indeed, which is bad, and there would
be shifts and evasions to avoid the tax. So, also, more of other
taxation might be put on the rich. . . . Abolition of the law
of primogeniture would probably in time make the rich less
rich, and so tend to reduce inequalities of condition at present
existing. Whether this abolition is desirable on political con
siderations I do not say. That a large number of proprietors,
if prosperous, would be most beneficial I doubt not. That
they cannot be brought into existence by direct legislation I
am certain. That they could make a living I much doubt. . . .
As to the other part of the question, viz., Would the State
management of capital or land promote or impair the produc
tion of wealth and the welfare of the community, I say, with
out hesitation, that State management of land or capital would
impair such production and welfare. . . . Till men are as
honest, some may think as senseless, as the bees, they will not
work for the community as zealously as each works for himself.
Consequently the total produce will not be as great in the
former as in the latter case. When each man knows that the
size of his ration will be the same whether he works or not,
and knows that others will shirk, he will shirk too, and the
poverty and misery of all will follow. Besides, there is the
impossibility of managing such a large national farm or factory.
Also such a state of things would have a most depressing,
deadening effect on all, and make life a dull misery. . . .
' Without going into the question of natural rights, this is
true ; when men are united in society, all their rules and institu
tions are artificial, and if any of these is against the general
good, it should be abrogated. But I am satisfied that the
institution of private property in land is for the good of society, as
is the right of each man to the benefit of his own labour. It
gives each man a motive, and the strongest, to make the best of
his means and his work. I agree with the late Sir W. Siemens,

252 A MEMOIR OF LORD BRAMWELL
who said, "If an invention lay in the gutter unowned, I would
give it to a particular owner, that someone might have a par
ticular interest to develop and push it." I believe that the
best thing for all is that there should be what I believe the
Americans call "the largest pile." Though the shares may be
unequal, there will be the greatest bulk to divide, the greatest
average share, the greatest amount of enjoyment, the greatest
individual wealth, perhaps, but the least individual poverty.
' As to the mischievous nonsense about each child being born
with a right to share in the land, the short way of dealing with
it is this, is it expedient or not that he should have a share ?
If expedient, let him have it, whatever his right may be ; if
inexpedient, refuse it, whatever his right may be. Or rather
be sure he has ' no right.' It is nonsense to talk of such a right.
As I have said, all rights in a state of society are artificial. It
might as well be said he had a ' natural right ' to a box at the
opera. ' As for the mischief occasioned by farmers having recourse
to pasturage instead of tillage, farmers do this because they
get the greater profit by it, and would continue to do it for
that reason, even if they paid no rent for their land. They
now get, or ought to get, the fair reward for their capital and
personal labour. If they paid no rent, they would get that
rent in addition. But, in consideration of their having to pay
no, or less, rent, would they then revert to tillage instead of
pasturage, would the gross produce then be greater and the
labour employed more ? . . . But how bring about this change ?
By a direct law that the farmer should have such a proportion
of his land in tillage ? I believe such a thing impracticable.
But, farther, how is the farmer to pay no, or less, rent ? By
confiscation, so that nothing shall be received by the land
owner ? If A has sold his railway stock and bought land, and
B has sold his land and bought railway stock, A shall lose his
land, but B keeps his railway stock. Why ? It is said that
the private ownership of land is robbery, and that every owner
of land knows it. This, if honest, is crazy nonsense. All pro
perty exists by law, and one is owned as honestly as the other.
Are all the members of building societies thieves ?

A PEREMPTORY NEGATIVE 253
' Only a word as to that part of the question which asks
about the State management of capital. It might as well be
asked whether the State management of capital and labour at
Portland Prison is not as productive and pleasurable as the
private management of them. I say capital and labour. They
cannot be dissociated. Separately they are useless. Those
who manage capital must manage labour. . . .
' I answer the second part of the question peremptorily in
the negative.'

[ 254 ]

CHAPTER VIII.
TEETOTAL LOGIC— LEASEHOLD ENFRANCHISE
MENT—LAND LEAGUE JURISPRUDENCE.
His prejudice against that teetotal logic expounded after 1880
— Letter from Lord Shaftesbury — Pamphlet on ' Drink '
— Archdeacon Farrar's reply — ' Drink, a Rejoinder,' in
Nineteenth Century — Times leader by Lord Bramwell —
'Leasehold Enfranchisement' pamphlet — Its origin —
Chief Baron Pollock's remedy — Letters from distinguished
Irishmen about distinguished Irishmen — Lord Bramwell's
view of Mr. G.'s Irish policy — His jealousy of Nationalist
jurisprudence and rules of procedure — The new ' In
stitutes ' — Takes an active part in an Irish Defence Union
during the terreur vert — Letters to secretary of Union and
to Sir G. Baden Powell — Article in Liberal Unionist —
Times letter about Mr. G. — Previous one to him from
Mr. G. — Criticism of Nationalist administration.
On March 7, 1883, Earl Stanhope moved the
second reading of a Bill prohibiting payment of
wages in public-houses. ' An interference with liberty
and right of personal option inherent in British
subjects,' said Lord Bramwell. He was a lawyer,
and there was a disposition to argue that a man
acquainted with law should talk about law, and be
silent on all other subjects. As for the Trade
Union Congress approval of the Bill, ' was Lord

1 THE BENEFIT OF THE NATION' 255
Stanhope going to introduce a Land Nationalization
Bill because the Congress also approved of that ?'
Lord Shaftesbury replied, attacking the recently-
formed Liberty and Property Defence League.
' It would be well,' he said, 'if the House did inter
fere with liberty of the subject for the benefit of the
nation ' — of course, the old coercive argument of
Canonists and Puritans, based on pretended super
natural power to decide what kind of food, clothing,
sport or religion actually is ' for the benefit ' of your
neighbour. Socialists were then beginning to
claim similar powers, based on profane inspiration.
In reply to a remonstrance from Lord Bramwell
about the tone of his speech, Lord Shaftesbury
wrote next day : ' House of Lords,
'March 8, 1883.
' My Lord Bramwell,
' Your letter has astonished and grieved me. I was not
aware that I had been " cross " towards you during the debate
on Lord Stanhope's motion, still less that I was " something
else." I was not so, I may say, and most surely may affirm
that I had no right to be so towards a peer who was discharg
ing his duty conscientiously. That I was alarmed as to the
future when I saw and heard an eminent Judge lay down such
propositions, I do not deny ; but if there was anything in the
language I used which any one peer — I care not who — would
assert to have been disrespectful to your lordship, I will make
an open and ample retraction. Your lordship speaks of your
self as a " very little man " in comparison with me. That is
not my estimate, nor the estimate of the public. God knows
I have lived long enough, and had experience enough, to learn
that my "greatness" is but as "the small dust of the
balance." ' Your very faithful servant, ' Shaftesbury.'

256 A MEMOIR OF LORD BRAMWELL
In February, 1883, some teetotaler, after his kind
wrote to the Times. This appeared March 1 :
' A Legislative Nullity.
' It is a paradox, but it seems difficult for sincere and earnest
people to stick to the truth. Your correspondent is an ex
ample, for he is earnest and sincere, as I infer from his letter,
but not truthful. He says : " Lords Bramwell, Wemyss, and
Brabourne upheld the rights of the employer to compel his
men to spend part of their money in drink." He says I forgot
several things — among others, that " payment in a public-house
tempts men to drink, and leads to actual pressure being put on
men to drink."
' Not a word of truth in it. I expressly said that no right-
minded employer would lead his men into temptation by pay
ing their wages in a public-house if he could help it. I objected
to the Bill on two grounds : First, that it was simply taken
from the Mines Regulation Act, and placed before the House
without any evidence to show what good it would do, what
mischief it would prevent, what inconvenience it would cause,
and that the workmen affected by it ought to be taught to take
care of themselves, and not be treated like children. Lord
Wemyss was not a member of the House. Lord Brabourne
said nothing of the kind your correspondent imputes to us. I
retain my opinions. ' Your obedient servant,
' Bramwell.'
The little pamphlet on ' Drink,' published early
in 1885, ran through ever so many editions. It
said, not what nine English-speaking men out of
ten believe to be the last word on the controversy,
but all they care to say by way of contribution
to it. The Times, April 10, paid Lord Bram
well's pamphlet the compliment of republishing it,
adding on the 13th a specially friendly criticism.

; DRINK' 257

' Drink.
' There are some opinions entertained as honestly, as strongly,
and after as much thought, as the opinions to the contrary,
which nevertheless are put forth in an apologetic way, as
though those who hold them were doing wrong and knew it,
or at least doing something they were not sure about ; and
doubtless where the opinion is one of entire novelty, or where
it is contrary to the principles, feelings, and practice of all
mankind, one can understand this style in propounding it. If
it is possible to suppose an honest and sensible man thinking
infanticide or a community of women desirable institutions,
one would make sure and think it reasonable that a man so
thinking, who put forth such ideas, would do it humbly and in
the style of one asking pardon. But this apologetic style is
not confined to such cases. It exists in some when the opinion
entertained is righteous, just, moral, and in conformity with
the practice of all mankind. It exists where those who hold
the contrary say, and are permitted by their opponents to say :
" We are the righteous, the good, the virtuous, and you are
wicked, bad, and vicious." This is what the total abstainers
and the like say of themselves and those who do not agree
with them. I am one who do not, and I am going to say
why, and as I think my opinion as good and virtuous as theirs,
with the additional merit of being right, I am going to state it
without asking pardon for it or myself.
' Drink — yes, drink ! I mean by that drink which cheers
and, if you take too much, inebriates — drink as Mr. Justice
Maule understood it, when he was asked by the bailiff, who
had sworn to give the jurymen " no meat or drink," whether
he might give a juryman some water. "Well," said the
Judge, "it is not meat, and I should not call it drink — yes,
you may."
' Drink ! Yes, alcohol, of which if you take too much " you
put an enemy in your mouth to steal away your brains."
Drink, which makes a man contemptible and ridiculous if
under the influence of too much of it. Drink, which ruins the
health and kills the unhappy wretch who persistently takes it
to excess. 17

258 A MEMOIR OF LORD BRAMWELL
'Drink! Yes; I say it is a good thing, and I think the
world would act very foolishly if it gave it up. Why, if it can
do all the harm I have mentioned ? For this reason : that it
does an immense deal more good. I say outright that it does
a deal more good, because it gives a vast deal of pleasure and
enjoyment to those who take it with good sense and modera
tion. All over the world, with the exception of the followers
of Mahomet, whom we hold wrong, wherever people have had
the skill to make alcoholic drink, they have made and drunk
it. Wine where wine could be made. Where it could not,
and sometimes where it could, beer and spirits have been pro
duced and drunk.
' Is it not true that it is a source of great pleasure and enjoy
ment ? See the thorough relish with which a tired man takes
his glass of beer, the keen pleasure of the first glass of sherry
at dinner to the man exhausted with the labour of his brain.
But besides these keen enjoyments, take the more quiet and
sober pleasure of the glass of beer at dinner and at supper, or
with the pipe. This is a pleasure had in this country by
millions daily — nay, twice daily — and if, instead of the glass
of beer or wine, a small quantity of spirit with water is taken,
the pleasure is the same and the practice as reasonable.
' I have as yet only mentioned the pleasure of drink, but
there is more in its favour. I will not say that it is food, or
supplies the place of food. I do not know. Opinions differ.
But I will say what Sir James Paget* tells me : "I would
maintain this, and all that can reasonably be deduced from it,
namely, that the best and, in proportion to numbers, the
largest, quantity of brain work has been, and still is being,
done by the people of those nations in which the use of
alcoholic drinks has been and is habitual. Further, I would
maintain that, so far as I can judge of the brain work of dif
ferent persons, they have done the best and most who have
* A letter of March 9 from Sir James Paget commences : ' I
think I could not defend so large a statement as " that alcohol
is required for the brain. . . ." ' He added that for muscular
work alcohol was not of any value.

'DRINK' 259

habitually and temperately taken alcoholic drinks." And
certainly if we compare the brain work of the drinkers of
" drink " with the brain work of the Mahometan, we shall
find a justification for this opinion.
' This is the case for " Drink"— its pleasure and its utility.
Now what is on the other side ? A set of enthusiastic gentle
men, very honest, very much in earnest, with a very clever
leader, have taken the matter in hand. They say that the
world has been in error for all time, that drink is bad, that
drinkers are wrong, and that those who do not agree with
them are wrong, and not only wrong but viciously wrong,
ought to be ashamed of themselves, and their practice and
advocacy of drink denounced and put an end to.
' This is hard upon us who think otherwise. A little more
charity might be shown us. First of all we are the majority
vastly here in this country. Out of it, or, rather, out of Anglo-
Saxon influence, there is no minority even. Then we may say
to our opponents : " Your fathers drank, and your ancestors as
far back as story goes ; let us have time to think it out and see
the error of our ways." And this, at least, we may say to our
opponents without offence or irreverence. Those of them who
are Christians should, in the Eucharist and the miracle of
Cana, have found some excuse for those who think that drink
ing wine is not in itself wicked. But no ! Down with them !
— sinners, drunkards — shut up the shops, and so forth. Is
this reasonable, is it fair, is it charitable, even if right ?
' Now let us see what are the grounds of these opinions — no
doubt honest. It is said that immense mischief is caused by
excessive drink. I own at once that that is true. Disease
is brought on, health ruined, insanity and death caused, by
excessive drink. Further, the amount spent in drink is
enormous, and a large, part of it might be better expended, i.e.,
in the production of more pleasure and enjoyment than are
given by drink. Whether as much as £"134,000,000 a year is
spent on drink, as it is said, may be doubtful. But a good
many millions may be taken off, and still a figure remain which
is very lamentable — too much for health, too much for comfort,
too much for enjoyment. But what does it prove ? Not that
17 — 2

260 A MEMOIR OF LORD BRAMWELL
all the 8,000,000 male adults of the kingdom are doing wrong
and are drunkards, but that some are ; that some have been
drinking to excess, and have swollen the average. There is
this, however, to be said, that if that sum is spent in that
way, it shows the amount of enjoyment that must be derived
from it.
' There is no doubt also that crime is caused by drink. It
is certain that more is drunk on Saturdays, and more crime
committed on that day than any other. The drunken man is
more likely to commit a crime of violence or robbery than the
sober. The drunken man, also, is more likely to have a crime
committed on him in his helpless state, than is the sober man.
' This is the case against drink, and a very strong one.
Now, what is to be done ? It seems obvious to answer : Let
those who drink in moderation continue to do so, and let others
leave it alone or learn to take it moderately. " No," say the
total abstainers, or some of them, " that can't be. If drink is
to be had, some will take it in excess. Stop it altogether."
Now, I do not say that this is beyond the right of society to
its members. I do not know what is. If society's right to
interfere with individual liberty is limited to cases necessary
to secure the object for which society exists, viz., security of
person and property from external and internal attacks, then
this prohibition of drink is not within the right of society.
But, certainly, society does not limit itself in that way. It
prohibits disorderly houses and gaming houses. Perhaps on
similar considerations it may prohibit the making and sale of
alcoholic drink. But if it is within its right, is it fair, is it
just, is it reasonable, expedient, because some take it to excess,
that it is to be denied to millions to whom it is a daily pleasure
and enjoyment with no attendant harm ? Does this seem fair ?
The glass of beer is taken from the whole of fifty men because
one of them will take more than is good for him. And take
even his case. He drinks and ruins his health. May he not
say : " What is that to you ? It is my affair ; it is my
pleasure not to be as good as you. How do I harm you?"
Of course, if he is drunk in public, or riotous, or his drinking
injures the public, punish him ; but it does seem hard that,

'DRINK' 261

instead of this, the sober man should be punished — punished I
say. For withholding a pleasure and inflicting a pain are
equally punishment.
' In truth, these liquor laws are either to make men better
who do not want to be made better, or to make men better
who have not self-control, and in both cases at the expense of
others. " You shall not enjoy a glass of beer ; because if you
can get it, so can I, and I shall make a beast of myself." Or,
" You shall not enjoy one glass of beer, because you take too
many." Is that just ? Is it a warrantable interference ? Then
see the mischief of such laws. The public conscience does not
go with them. It is certain they will be broken. Everyone
knows that stealing is wrong ; disgrace follows conviction.
But everyone knows that drinking a glass of beer is not
wrong ; no discredit attaches to it. It is done, and when done
against the law, you have the usual mischiefs of law-breaking,
smuggling, informations, oaths, perjury, shuffling, and lies.
Besides, as a matter of fact, it fails. Nothing can show this
more strongly than the failure in Wales of the Sunday Closing
Act. Further, what is to be done ? Is the sale of drink to be
suspended all over the United Kingdom ? Impossible. In
parts only ? Then all the more will be sold elsewhere. On
certain days only ? Then provision will be made for a store
of it, and the drunkard will sot himself at home with no eyes
on him to check him. Consider, too, the practical unfairness
on men, who, having no cellar, trust to the public-house for
what is a reasonable and wholesome enjoyment when not
abused. ' Can nothing, then, be done by law to diminish the mischief
caused by drink ? I say " No." Whether it is desirable to
limit the number of drink-shops is a matter as to which I have
great doubt and difficulty. But grant that there is the right to
forbid it wholly or partially, in place or time, I say it is a right
which should not be exercised. To do so is to interfere with
the innocent enjoyment of millions in order to lessen the
mischief arising from the folly or evil propensities, not of them
selves, but of others. And, further, that such legislation is
attended with the mischiefs which always follow from the

262 A MEMOIR OF LORD BRAMWELL
creation of offences in law which are not so in conscience.
Punish the mischievous drunkard — indeed, perhaps, even
punish him for being drunk in public, and so a likely source of
mischief. Punish, on the same principle, the man who sells
drink to the drunken. But go no further. Trust to the good
sense and improvement of mankind, and let charity be shown
to those who would trust to them rather than to law.'
As a matter of fact Lord Bramwell was singularly
partial to water. During his walking expeditions,
whenever he came upon a likely pond, if the weather
was warm and nobody was looking, he would take
off his clothes and have a bathe, drying himself, ' in
case of need,' as notaries say, with his pocket-hand
kerchief. He was no great swimmer, but could
float for ever, and delighted to roll and splash in the
water. One long vacation, wandering about the
west coast of Scotland, he took passage on a
steamer which stopped at sundry piers in succes
sion. Learning that at a certain pier the boat was
to wait for three-quarters of an hour, the Baron
made up his mind to walk along the coast-road, and
catch up with the steamer at the next stopping-
place. This plan would have worked all right, only
that, as soon as the Baron started, a wedding-party
came down and bargained with the captain to take
them, for ninepence a head, to a certain manse
further on, where the wedding ceremony was to be
performed at night, as the local custom was. It
was a beautiful autumn evening, the sea smooth as
glass, and the little steamer kept close in shore. As
she gently rounded a promontory, the passengers
came upon an object of interest ; this was Sir George

'DRINK: A REJOINDER' 263
Bramwell, standing upon the rocks at a spot where
temptation to plunge in the deep, cool water had
proved irresistible ; he had just emerged from the
sea, and was industriously drying himself with the
folds of his umbrella.
As for teetotal polemics generally, incoherent
rhetoric was at all times exasperating to Lord
Bramwell. If very innocuous as well as incoherent,
his ready power of appreciating the ludicrous aspect
of things put him in good humour again.
In May, 1885, Mr. James Knowles, Editor of the
Nineteenth Century, reprinted Lord Bramwell's
paper on ' Drink,' together with a reply thereto by
Archdeacon Farrar, who, instinctively following the
Early Fathers of disendowment, said : ' Many of us
are sick of this cry about " private rights," which
mean "public wrongs.'"
Now, what is a 'public wrong'? Something
objectionable, no doubt ; but, then, how can a
Common Law right ' wrong ' the public ? Elsewhere
the Archdeacon had said, ' There can be no vested
interest in a nation's wrong.' Lord Bramwell
probably had come across the latter maxim, to
his mind a complete synopsis of chaos ; the first
bewildering thought about it being that it is true,
undeniable ; a truism, indeed, because there is no
vested interest in ' a nation's wrong ' — one can't buy,
sell, bequeath, or mortgage it. When behind the
richly-upholstered rhetoric an intention to assert
something coherent was visible, Lord Bramwell
must have been horrified. Apparently, Archdeacon
Farrar meant that any property, interest, right, or

264 A MEMOIR OF LORD BRAMWELL
security, which is alleged, in sufficiently rhetorical
terms, to 'wrong a nation,' may be confiscated.
Lord Bramwell found himself asked to say that the
exercise of an acquired and inherited Common Law
right could wrong an entire nation. He knew that
was impossible. Besides, although there was no
visible or tangible plaintiff, judgment was asked by
the Archdeacon against the defendant (a real person
— Brown or Smith), his goods were to be con
fiscated, on no evidence, on mere assertion without
proof; the imaginary plaintiffs all the time having
been, on their own counsel's showing, consenting
parties to the ' wrong.'
In the Nineteenth Century for the following month
— June, 1885 — appeared: Drink : A Rejoinder.
' When I wrote for the Liberty and Property Defence
League the paper called " Drink," reprinted in the last
number of the Nineteenth Century, I was mainly moved to it by
a sense of injustice. Alcoholic liquors have been condemned
without a hearing. A love of justice, perhaps only an old
habit, made me think that " Drink " ought to have its case
stated. I thought that in some respects I was a proper person
to do so. I do not make drink, nor sell it, nor, if I may be
permitted to speak of myself, take much of it ; nor could my
paper lose or gain me any votes.
' . . . I am not without hope that I have to some extent got
drink a hearing. Archdeacon Farrar has honoured " Drink "
with a " Reply " in this review. I have spoken in favour
of honest drink temperately taken. The Archdeacon answers
by denouncing fraudulent adulterated drink and all drink in-
temperately taken. So do I, as heartily as he does. I depre
cate the unfairness and mischief of an attempt to make people
sober by law. . . .

' DRLNK: A REJOINDER' 265
' The Archdeacon says : " Lord Bramwell begins by saying
that this cause needs no apology, because it is just and moral
and in conformity with the practice of all mankind. If so,
what need is there to be so much moved by those whom he
evidently regards as a small and wrong-headed minority ?"
Was I much or at all moved ? I think not. I was not
conscious of it. Did I say that to drink a glass of beer was
"just or moral"? I think not. I think it neither just nor
unjust, moral nor immoral, any more than is the eating of an
apple. But I think it reasonable, unless the glass is followed
by too many others, and I suppose even so harmless a thing
as apple-eating might be carried to excess.
' Nor did I, as I have said, call the total abstainers " wrong-
headed." I gave them credit for honesty and cleverness, but
thought them wrong in renouncing a harmless enjoyment,
and doubly wrong in endeavouring, not only to persuade, but
to compel others to do so.
' The Archdeacon then quotes me as saying that the oppo
nents of all drink have said, " We are the righteous, the good,
and virtuous ; you are wicked, bad, vicious." Who, asks the
Archdeacon, has ever said this ? and he says he never heard
anything distantly approaching to such an allegation. On
reading this, I sent the Archdeacon a report of a speech at a
Blue Ribbon meeting, at which I and drink were spoken of.
This speech certainly did, not " distantly, approach to such
an allegation."
' I will not repeat here what was in it, as I will not help
to circulate what the Archdeacon, in a letter he was kind
enough to write to me, spoke of thus: "Archdeacon Farrar
sincerely hopes that remarks so disgraceful are most ex
ceptional ; they might be made by a vulgar-minded person."
" Probably," he says in the " Reply," "for lack of education,
language may have been used which might constructively be
pressed to so absurd a conclusion," i.e., that we are denounced
as bad while the abstainers claim to be good. Alas ! " the
disgraceful remarks " which help the absurd conclusion, as the
Archdeacon obligingly calls it, were made by a clergyman of
the Established Church. Another " Reverend," whether of the

266 A MEMOIR OF LORD BRAMWELL
Church or a Dissenter I know not, followed in a similar
strain. The speeches were very successful, being received
with "laughter," "shame," "hisses," and other marks of
approval of the speakers and disapproval of me. Now, here is
a case for total abstinence. I really should recommend to
these reverend gentlemen total abstinence from abuse, for they
do not know how to enjoy it with moderation. The same to
their auditors. I think they did " condemn and desire to
encroach upon the independent judgment and moral liberty of
their neighbours."
' In " Drink " I spoke of Mahomet as I think of him — not
very respectfully ; for I think his religion is very much the
cause of the inferior condition of those who profess it. The
Archdeacon says : " It is not worth while pausing to inquire
whether history will accept this description of the great
Prophet of Arabia, or whether his mighty and beneficial
influence in saving whole nations from the curse of intemper
ance does not go far to outweigh many of his errors." Great
Prophet ! Well, of course, the Archdeacon does not mean he
was really a prophet, an inspired person. But it is as well to
use right words. If he was inspired, cadit quastio. If not, he
was an impostor or crazy. He enjoined abstinence from drink.
Now, I desire to ask Archdeacon Farrar if he prefers Mahomet's
teaching to the teaching which did not contain that injunction ?
In my paper I respectfully appealed to the Eucharist and
miracle of Cana, to prove that drinking wine is not in itself
wrong. The Archdeacon says I am " fighting a chimera — no
one ever said it was." Indeed ! But I ask, and again appeal
to those two instances — and I might appeal to many other
texts — does the Archdeacon remember who said, " I am the
true vine," and who looked forward to drinking wine new in
the kingdom of Heaven ? Is there anything in the New
Testament which enjoins total abstinence, or is inconsistent
with the moderate use of wine ? and does or does not Arch
deacon Farrar prefer that teaching to Mahomet's ? Is
Mahomet's teaching right ? If it is, the Gospel teaching
is wrong. Is Mahomet's teaching wrong ? Then how can
wrong teaching " outweigh many errors " ? What error is

DRINK: A REJOINDER' 267
outweighed ? The error of polygamy ? Of course the Arch
deacon will admit that is an " error." Is this an error out
weighed ? Is the " error " which enjoins war on the infidels ?
But the Archdeacon has a regard for "the Prophet." He
refers to Avicenna and Averrhoes as giving the chief impulse
to philosophy, medicine, and science in the modern world, and
says that Albert the Great and St. Thomas Aquinas did not
disdain to learn from the Arabic commentators on Aristotle.
As Mrs. Shandy said, " That was a hundred years ago."
Does the Archdeacon really think that the brain-work of the
Mahometans now excels that of Christians ? If so, why does
he not give a few instances more modern than the time of
Albertus Magnus and Thomas Aquinas ? I do know that
Alcohol is Arabic, as are also Algebra and Alchymy ; but
what of it ? Enough, however, of " the great Prophet of
Arabia." ' The Archdeacon says : "I challenge the proposition that
because drink gives a great deal of pleasure and enjoyment it
therefore does an immense deal more good than harm. The
two results are not in pari materia." Then why compare them ?
I meet a thief carrying a bundle of stolen goods. If I ask him
whether the load on his back or the load on his conscience is
the heavier, he may properly reply that the two are not in pari
materia. But what should we think of his logic if he straight
way proceeded to demonstrate that the load on his conscience
was seven times as heavy as that on his back ? When
Paley described the pleasure of a noble action as " some
multiple of the pleasure of eating a cheesecake," Whewell
objected that the two were not in pari materia ; he was too
good a logician to go on and contend that one was greater than
the other. Not so the Archdeacon. He goes on and says :
" The good takes the form of a sensuous pleasure, a passing
exhilaration ; the harm takes the form of disease, pain, waste,
insanity, crime, and death. The pleasure is insignificant, the
harm is deadly." Now, I did not say " therefore." A conclu
sion to the effect stated would be illogical, and, to copy the
Archdeacon, " absurd." I said, if you sum up the good on one
side and the harm on the other, the good outweighs the harm.

268 A MEMOIR OF LORD BRAMWELL
What is the objection ? that the pleasure is sensuous ? So is
the smell of a rose. Why is not a passing exhilaration good ?
What of a thrilling piece of music ? True, the mischief to an
individual from the excess of drink more than outweighs the
good of moderate drink to an individual. But what of the
pleasure of the millions who enjoy temperate drinking com
pared with the misery of the relative few — no doubt far too
many — who drink to excess ? Of what might not that be said
which the Archdeacon says of drink ? Men eat too much,
I know. Sir William Gull has said that more harm was done
by over-eating than by over-drinking. Some men read too
much, others are too fond of cricket, some smoke too much.
I own that the mischief of excess in these matters is not so
bad as the mischief from drink — not nearly as bad ; but there
is the excess, and unless the mischief from that excess out
weighs the pleasures from moderate indulgence, it is temper
ance in the enjoyment of, not abstinence from them, that should
be enjoined ; and the same is true of drink. Does the Arch
deacon remember what Horace says (Sat. I. ii. 36) about
women in general, and Helen ?
' The Archdeacon says that " a Christian in an age of rapid
intoxicants, in a country where drinking is the worst national
vice " (have we another ? — what ?) " may be excused from
accepting Lord Bramwell's conclusions, when he finds that
centuries and millenniums ago they were rejected by Jews and
pagans, who, though Jews and pagans, thought very differently
from the English Judge." Innuendo, as a lawyer would say,
that an English Judge who did not think at least as well as
Jews and pagans did, must be a sad fellow. But let us see
the evidence as to the Jews and pagans, and their thoughts.
' The Archdeacon says that some of the Rabbis believed the
vine was the forbidden tree. Now, with all respect for Rabbis,
I doubt if their learning has much bearing on the question in
hand. I am glad to believe that their practice was never that
of total abstinence. I fully admit that they know more than I
do on the subject on which their opinion is quoted. Some of
them thought the vine was the forbidden tree. I dare say ; I
suppose some thought otherwise ; but even if they all thought

'DRINK: A REJOINDER' 269
so, it seems to me that they paid a great compliment to the
vine, for no tree could be more highly spoken of than the one
the fruit of which was forbidden. Does the Archdeacon think
that the vine was the forbidden tree, or agree with Him who
said, "I am the true vine"? And the Archdeacon should
remember that the vine does not grow wine, but grapes, and it
is the fault of man that grapes are put to a bad purpose, if it is
bad. Should the Archdeacon say that a thing is bad which
can be put to a bad purpose, I should like him to show me
what cannot. And I remind the Archdeacon that he must
condemn barley, from which beer is made ; and as more people
get drunk from that than from wine, it would seem the Rabbis
should have made barley the forbidden tree — except for the
difficulty that it is not a tree. Then oats, and the potato, and
nearly all fruits and vegetables, should be condemned on this
ground — even some animal matters might.
' If we do not know exactly what the ancient Rabbis thought
or did, we do know what those did from whose writings the
Rabbis drew their inspiration. In the Book of Proverbs we
read, " Give strong drink unto him that is ready to perish, and
wine unto those that be of heavy heart. Let him drink and
forget his poverty, and remember his misery no more." In
Ecclesiastes, " Blessed art thou, O land, when thy princes eat
in due season, and not for drunkenness "; Psalm civ., " Wine
that maketh glad the heart of man." Isaiah looks forward to
the day when " in this mountain shall the Lord of hosts make
unto all people a feast of fat things, a feast of wines on the
lees, of fat things full of marrow; of wines on the lees well
refined." ' But now we come to formidable matter. The Archdeacon
says the discovery of wine in the Scripture is instantly followed
by a patriarch's degradation and the son's infamy, and the
curse of an entire branch of the human family. In these four
verses (Gen. ix. 20-24), says Rabbi Oved the Galilean, there
are no less than thirteen vaus, and each vau stands for a woe
upon the human race.* I can't deny it, nor could I if Rabbi
* In Gerald Griffin's ' The Collegians,' p. 90. When the
herdsman is claiming kinship with the gentry, he says, ' My

270 A MEMOIR OF LORD BRAMWELL
Oved the Galilean had put the number at five thousand. I
humbly own I never before heard of Rabbi Oved the Galilean,
nor have I the least knowledge why a vau should stand for a
woe on the human race. But, speaking under the correction
of the Rabbi, Noah, who was " drunken," was not punished ;
nor was Ham, whose offence was that he did not honour his
father. Poor Canaan and his posterity were cursed by Noah,
because he had been drunken, and Ham disrespectful. Ham
was not punished himself; so I think "infamy" must be a
strong word to apply to his conduct. I do not know what was
the degradation of Noah, except that he took too much, prob
ably finding it so good and not knowing the mischief. This
also I think too strong a word ; I should scruple to say that
Noah was " degraded," though doubtless to be drunken is
degrading. But a dignitary of the Church may perhaps take
such a liberty with a patriarch. The curse of Canaan was
Noah's only. Whether he had authority to curse I know not ;
but as to Canaan and his posterity, if human feeling had
anything to do with the composition of Genesis, it must be
remembered that the Jews had a strong temptation to make
a justification of their treatment of the Canaanites. After all,
it was not he who drank that was punished. Really, is the
important question the Archdeacon discusses to be answered
by the help of these Rabbis and vaus ?
' The Archdeacon, having quoted the Jews, turns to the
pagans. He cites Propertius, Pliny, and a Thracian King ;
but do either of them do more than object to " misused wine "?
We all object to this. But was any one of these pagans a
total abstainer ? Does the Archdeacon deny that all antiquity
praised wine ? He makes a solitary quotation from Propertius,
which I do not understand as condemning drink in moderation,
but in excess. Let me quote to the Archdeacon a passage
recently sent to me out of Horace, who was a sensible
fellow :
grandfather and himself were third cousins. Oh, vo ! vo ! vo !'
A note explains that ' vo ' is equivalent to the French Mlas I
and the Italian oime I

'DRINK: A REJOINDER' 271
' " Quid non ebrietas designat ? operta recludit ;
Spes jubet esse ratas ; in prcelia trudit inertem ;
Sollicitis animis onus eximit ; addocet artes :
Fecundi calices quem non fecere disertum ?
Contracta quem non in paupertate solutum ?"
' Will the Archdeacon accept Propertius as a censor morum ?
Does he know that Cuvier said of Pliny that he was " an author
without critical judgment whose reflections have no relation to
science, but display alternately either the most superstitious
credulity or the declarations of a discontented philosophy which
finds fault continually with mankind, with Nature, and with
the gods themselves"? Does the Archdeacon agree with his
theology ? The Thracian King, for speaking ill of Bacchus,
came to a bad end, to the satisfaction of the whole population
of Athens.
' But if we are to have these authorities, why not quote
^Esculapius, Hippocrates, and Galen ? Galen strongly defends
the practice of drinking wine, especially for old people. He
says : " Old age is cold and dry, and is to be corrected by cale-
facients." One Greek quotation — Euripides says : " Dionysus
introduced among men the liquid draught of the grape, which
puts an end to the sorrows of wretched mortals." This was
addressed to his Athenian audience. Will the Archdeacon
consult the Rig Veda? "This wine when drunk stimulates
my head. It calls forth the ardent thought."
' The Archdeacon, after the Jews and pagans, quotes Franklin,
who advocates temperance. So do I. . . .
' . . . The Archdeacon says, speaking of me, " Perhaps he
may not have tried whether abstinence, undertaken from
generous motives, is not a source of even greater pleasure,"
i.e., than drink. The question is somewhat personal. I
answer to this extent, I have not tried it. I never had the
opportunity. But, dropping the personal, I say that if absti
nence on the part of a temperate drinker would reclaim any
drunkard, a man of ordinary humanity would practise it as
far as considerations of enjoyment were concerned. I say
nothing of myself, for this among other reasons, that I care
very little for drink, and could easily renounce it. I do not

272 A MEMOIR OF LORD BRAMWELL
think that " any number of glasses of beer, or sherry, or gin,
could yield a pleasure equivalent to that which we experience
when we know by our abstinence we have been blessed in the
power to snatch from ruin and degradation so much as even
one imperilled life!" Further, I dare say that in many cases
drink is a needless luxury, and that many would spend their
money better than in its purchase. But that is not the ques
tion. There are two questions : one is whether those who can
afford it should give it up ; the other is, if they will not, whether
they should be made to do so.
' " Sin," says the Archdeacon, " is the worst curse of man
kind. It is the one curse of humanity of which we might
absolutely cut off the entail." Alas ! the Archdeacon tempts
an old lawyer to say we should then be seized in fee simple of
this sin, and have the largest possible estate in it.
' The Archdeacon makes a great, I must say a mischievous,
mistake when he says : " It is a shameful injustice that the
rich should be easily able to keep public-houses from the parks
and squares in which they live, while the poor are left helpless
and unprotected, to their most fatal temptation." I call this
mischievous as a suggestion of ill-usage of the poor, of which
there is much too much inflammatory talk already. It is a
mistake, because it supposes that there is some law or arrange
ment which causes it, when it is only the result of this, that a
public-house in a square in which the rich live would not pay.
What does the Archdeacon say to the injustice of shutting up
the place where the poor man gets his beer, and leaving open
the rich man's club ?
' The Archdeacon says : " Lord Bramwell bids us trust to
the good sense and improvement of mankind. Alas ! we have
been doing so for centuries." He refers to the cockatrice on
Amiens Cathedral, and cruelly says, " Lord Bramwell once
more hangs the desecrated shield of liberty on the signboard
of the gin-palace." This is " magnifique, mais ce n'est pas la
guerre." It is eloquent — at least, I suppose so — but it is not
argument. Why should the Archdeacon distrust mankind and
want the aid of the law ? He supposes there are three to four
million total abstainers in England. How many were there

' DRLNK: A REJOLNDER' 273
fifty or twenty years ago ? Yet the Archdeacon wants more
law. He speaks as though it was now being asked for for the
first time. Laws in restraint of drink have existed for nearly
three centuries, have been broken more than any others, and
have caused more offences than any others. I have tried
more cases of perjury arising from them than from any other
cause. . . .
' I will not notice Edward IV., the Duke of Burgundy, or
Oliver Cromwell, but I will express my agreement with the
good and venerated nobleman, Lord Shaftesbury, that " I see
the absolute and indispensable necessity of temperance associa
tions," if he means, as I believe, temperance, and not total
abstinence — nay, more : if there are men who cannot drink in
moderation, but can totally abstain, I heartily agree that they
should do the latter. As to Goethe, does the Archdeacon know
that one of Goethe's character's quotes, I suppose with
Goethe's approval, the following line from an old song :
' " Der Wein erfreut des Menschen Herz."
The Archdeacon may like the rest of the quatrain :
' " Drum gab uns Gott den Wein.
Auf ! lasst bei Rebensaft und Scherz
Uns unsers Daseins freun !"
Does the Archdeacon approve the life and conduct of Lacor-
daire, whom he cites ?
1 I have now been through the " Reply." Let us see where
we agreeand where we differ. I said that " drink" in moderation
is a source of great and harmless enjoyment. Does he deny it ?
No. He says it causes great mischief. Did I deny that ? No.
He thinks the mischief outweighs the good. I think the good
outweighs the mischief. So far we differ. I say that, if not, the
good may be had without the mischief. I do not understand
him to deny that, if people would only be wise. I said it is un
just to deny enjoyment to A and the other letters of the alphabet
down to Z because Z abuses the means of enjoyment. Does
the Archdeacon deny it ? He complains of adulteration and
the vile stuff that is sold as " drink." I did not mention that,
18

274 A MEMOIR OF LORD BRAMWELL
but heartily join him, and would punish the makers and sellers
as poisoners. He advocates temperance. Have I said a word
in favour of intemperance ? No. I deprecate compulsory
legislation as leading to breaches of the law. This is a subject
he leaves untouched. I asked for charity and indulgence for
those who think as I do. He does not say we are entitled to
it. He appears to think we get as much as we deserve.
' The Archdeacon has called up Mahomet, Noah, his unlucky
son Canaan, and all his posterity ; the Rabbi Oved the
Galilean, and divers other Rabbis ; Propertius, Pliny, a legen
dary Thracian King, Aristotle, Franklin, the Duke of Bur
gundy, Edward IV., Avicenna, Averrhoes, Albert the Great,
Thomas Aquinas, Oliver Cromwell, Milton, Goethe, and
finishes with Lord Shaftesbury, who, I warrant, never before
found himself in such company. . . .
' Bramwell.'
Here is a portion of a Times leader written by
Lord Bramwell, printed in November, 1885 :
'The Alliance News, in its number of November 1, says that
Lord Bramwell has written that " to prohibit the sale of drink
is either to make men better who do not wish to be made better,
or it is to protect at the expense of others those who will not
protect themselves, and then it is wholly unreasonable." If
Lord Bramwell has said so, we are glad of it ; but our business
is not with him, not with the text, but with the sermon thereon
by the Alliance News, which is edifying and amusing. Says
the Alliance News, this "discerns entire unreasonableness in the
endeavour to protect at the expense of others those who will
not protect themselves. The proprietor, for example, who is
induced by public opinion to put at his own charges a railing
round his gravel-pit, and that other one who is compelled by
law to fence off his machinery, are alike victims of entire un
reason. The lady who lets apartments tainted with infectious
disease is not to be put to expense in disinfective procedure for
the sake of lodgers who, not knowing the facts, will not protect
themselves." The writer evidently thinks that people have a
propensity to throw themselves down gravel-pits and against

A FAULTY BILL 275

machinery, and that people who take infected lodgings, " not
knowing the facts," are people who will not protect themselves.
The Alliance News further says that Lord Bramwell deems it
an impertinence to make men better who do not wish to be
made better, " however greatly they may need to be improved."
So say we, if the making them better is by force. The writer
in the Alliance says, if it is an impertinence to make them
better, it is an impertinence to try to make them better. Not
so. If the writer of the article were whipped to make him
write better, it would be an impertinence, and worse. He likes
his own style, and so do his readers, doubtless ; but it would
not be an impertinence to try to improve him by gentle
means, as we are now doing. He goes on in a singular way.
Lord Bramwell is a graduate in a pagan school. " But to
seek and save that which is lost is a Divine mission." And
then there is a reference to Christianity which we forbear
quoting. But this we may say without suspicion of irreverence,
that Christianity does not proceed by compulsion, but by
persuasion. . . .'
Archdeacon Farrar replied to ' Drink : A Re
joinder,' in the Nineteenth Century, July, 1885, and,
both being gentlemen, these two controversialists
became better, instead of worse, friends. The
Archdeacon's side of the question, or some precis of
his argument, ought also to be given ; but, firstly,
there is no room ; secondly, few people care about the
matter nowadays ; thirdly, Archdeacon Farrar seems
really to have got the best of it in the end, becoming
Chaplain to the Speaker, Dean of Canterbury, and
so on.
The June, 1885, number of the Nineteenth Century
had also contained an article by Mr. Henry Broad-
hurst about a Leasehold Enfranchisement Bill which
he had backed. No doubt Lord Bramwell, after
reading — as contributors will do — his own paper,
18—2

276 A MEMOLR OF LORD BRAMWELL
read Mr. Broadhurst's, and in consequence thought
a pamphlet on the subject worth writing.
Lord Bramwell begins by thus severely condemn
ing the Bill :
' The Leaseholds (Facilities of Purchase of Fee Simple) Bill
lately before Parliament gives power to take a man's property,
not for any public purpose, but for the benefit of the taker —
without paying a fair compensation to the owner ; avoids all
contracts which would prevent the application of the Act ; for
bids an intending lessor and lessee to make a binding bargain
on such terms as they think suitable. Moreover, it exhibits
gross ignorance of the subject with which it deals, and of the
law relating to it. . . .'
He then goes on to expose its foolish and contra
dictory provisions in detail, adding :
' . . . These are some of the objections to this precious
attempt at legislation. There are others in matters of detail.
But the main objections are what have been mentioned : inter
ference with the rights of property, inadequate compensation
for what is taken, and interference with liberty of contract. To
justify this some powerful reasons should be given. . . .'
and winds up :
' ... If property is to be taken, if freedom of contract is to
be interfered with, let the terms be fair, and let the interference
be for good cause, and not, as in this case, without a reason
that will bear examination.'
Ultimately differences arose among advanced land
reformers about the matter, Socialists objecting to
turn leaseholders into freeholders on any considera
tion. The Socialist microbe, in other words, ate up
the Radical microbe.*
* On July 23, 1859, Chief Baron Pollock had written almost
prophetically to Sir George Bramwell :
' . . . I should like to see an " Encyclopaedia of Hum-

ANGLO-IRISH IDEAS 277
Other things relative to the matter happened
later. In January, 1887, Mr. H. W. Lawson wrote
to the Times explaining that he had succeeded
Mr. H. Broadhurst as President of the Leaseholds
Enfranchisement Association. Inter alia he recom
mended ' some form ' of leasehold enfranchisement
' as a cure for the evils of overcrowding, insanitary
dwellings, and apathy in the performance of social
duties' There is still much apathy.
A letter to the Times of January 9, 1889, refers
to a favourite proposal of the anti-capitalist and
Socialist party :
' The Taxation of Ground-rents.
' There ought to be no difficulty about the question of taxing
or rating ground-rents. When a man takes a house as tenant
from year to year or on a lease (without premium), and pays a
rack-rent, that rack-rent is composed of (1) hire of bricks,
mortar, labour, etc., used in the building of the house ; (2) hire
— compensation for the use of — the land on which the house is
built. For example, rack-rent is £"50 a year, made up of /40
a year compensation for the house and /"io a year for the
land. The tenant pays no ground-rent (so called).
' Suppose he built the house himself at the same cost, but had
a lease of the land at ^"io a year, he would then pay a ground-
rent. Is there any reason why more rates or taxes should be
paid in respect of the house in the latter case than if it were
occupied at a rack-rent ? Clearly not.
bug." ... I am afraid the probable size of it alarms you, but
never fear ; one step towards getting rid of It is to collect It
together as Jehu did with the priests of Baal when he
" destroyed Baal out of Israel." There are humbugs that destroy
each other, like some poisons which are mutual antidotes. If the whole
pile of humbug could be collected, you would see the heap
dwindle by action and reaction. . . .'

278 A MEMOIR OF LORD BRAMWELL
' But one of your correspondents wants to know why
occupiers should pay all rates, etc., and the owner of the
ground-rent none ? The answer is, Because the occupier has
agreed to do so, or the law has said he should.
' Is it not apparent that, if the burden is put on the owner of
ground-rent, it should be taken off the occupier to the same
extent ? Otherwise the same value in land and building would
pay different rates according to the way it was let.
' Your obedient servant, 'B.'
In his address to the British Association, July,
1888, he had said :
' . . . A man has three pieces of land of the same size, situa
tion, value. On one he builds a house at a cost of ^"1,000, and
lives in it; on another he builds a house at a cost of ,£"i,ooo,
and lets it at a rack-rent of ^65, putting the annual value of
his land at /15 ; the third he lets to a tenant at £5 a year for
fifty years on the terms that the tenant lays out ^"1,000 in
building a house. He, the land-owner, gives up ^"10 a year
because he will have the house at the end of fifty. The tenant
is willing to build the house and give it up at the end of fifty
years, because for those fifty years he will have land for £$ a
year which is worth £15. Can any human being give a reason
why any one of these three houses, or their owners and occu
piers in respect of them, should pay more taxes or rates than
any other of them ?'
Dissatisfaction, regretful grumbling about the
lawlessness of Mr. Gladstone's Irish ideas, Lord
Bramwell expressed in the Times for years, his
letters marking, like a chain of buoys at the estuary
of a tidal river, the channel kept and the channel
avoided, by the Liberal ship from Burke's day
onwards, also the dangerous rocks and shoals. A
thorough Englishman in his unwillingness to think

A PATRIOT INDEED 279
much about the Irish Question at any time, he said
nothing about the Nationalist or Land League
danger until he was forced to. He differed from an
old friend and correspondent, Baron Martin, about
the Compensation for Disturbance Bill of 1880, as
the following letter shows : ' Crindle, Myroe,
' Londonderry, ' August 13, 1880.
' . . . You are right as to Russell. He has turned out much
better than I expected. ... I like what I have seen of Gully,
but it was little. As to  I never could understand him.
He seems to be in Manchester business, and Manchester
solicitors are not fools. ... As to the Irish (Compensation
for Disturbance) Bill, I would have voted for it. The Govern
ment must know best whether it was necessary. I have a bad
opinion of Munster and Connaught landlords. What they let
is a site for a house and an acre for potatoes, which fail twice
out of three years.
' Samuel Martin.'
This letter of February 4, 1885, from a genial
Irish Judge, known to his friends as ' I. D.,' must
have reminded Lord Bramwell that when one
Irishman tries his best to speak well of another
conscientious difficulties supervene :
' February 4, 1885.
' . . . You ask me, Had O'Hagan all the virtues which the
Times ascribes to him ? A question, that, for the public to
answer, on which there may be great divergence of opinion.
You must not be guided by the press. O'Hagan was from
early life a press-man. They never desert each other. I lament
him much as one of the last of my old colleagues and a friend
from youth to the end. He was really a good man, genial,
hospitable to excess ; rarely said an unkind word ; never wilfully

280 A MEMOIR OF LORD BRAMWELL
did an unjust act. Strong and decided in his Liberal political
opinions, tolerant to others, a patriot in the sense of being
influenced by a passionate desire to promote the welfare of his
country. In religion a most sincere son of "The One and
Only True Church " ; probably entertained the sad view that
you and all like you, who wilfully and perversely keep outside
its pale, are doomed (and justly) for all eternity to sulphurous
fires, or to be baked in red-hot steel ovens, or submerged in
boiling tar and petroleum, or perpetually blown to pieces by
dynamite. Not an educated lawyer. In a certain sense a
good, popular speaker. A good presence, an agreeable voice,
and great facility in stringing together platitudes and rotund
sentences, coupled with wonderful industry in getting up his
speeches, made him a success as a popular speaker, and pro
cured for him the character of an orator. The Times characterizes
a speech made by him in 1859, on the occasion of the trial of
the Phcenix conspirators, as " remarkable for its magnitude,
its eloquence, and its denunciation of the Government." There
was at the time difference of opinion on the subject. If " mag
nitude " means "length," the term is properly applied, since
he spoke for eighteen hours. Mr. Baron Greene, who presided
at the trial, was heard to observe " every word of that speech
which was not high treason was mere bosh." Be that as it may, that
speech procured for him subsequently the representation of
Tralee in Parliament. On the whole, I think he was much
overestimated. He had no original genius, no courage, no
backbone, and was a most indifferent administrator. O'Hagan,
born in the North of Ireland, was brought up with a wholesome
dread of the pernicious effects of Orangeism on the administra
tion of justice. When Attorney-General, to provide a remedy,
he passed the Irish Jury Act (which the Times praised) — his
only real effort as a legislator. It was a grave mistake ; led to
much of our present misfortunes. He forgot the three other
provinces, and nearly ruined them. Were it not for two
amending Acts, life in Ireland would be less tolerable even than
it is. He was, however, a most amiable man, of many virtues,
and succeeded in life largely through his kindness and his
genial temper, which procured and retained for him a wide

'INDEED A BOTHER' 281
popularity. Supposed to possess great influence with the
clergy and people, he was in consequence promoted to the
highest offices ; but it was found by experience that popu
larity and real political influence were totally different things.
It will be difficult to fill his place in Irish Society. Adieu ; I
have bored you.'
After describing a holiday trip along the Alaska
coast and through California, Chief Justice Waite,
of the U.S. Supreme Court, wrote from Washing
ton, D.C. : 'June 4, 1887.
' . . . Home Rule is indeed a bother, and I agree with you
that our people ought to let it alone. But the Irishman here
has his vote, and every politician seems to 'feel himself under
the necessity of making a bid for it. Hence all questions
affecting that vote come to the surface and are talked about.
As a rule, what you hear comes from politicians in the cities,
where, unfortunately, this vote is often controlling. Especially
is this so in New York, where it is large and holds the balance
of power. I feel quite sure the Fisheries Question will very
soon get itself out of the way. Two nations like Great Britain
and the United States cannot afford to keep such an irritating
subject open to vex them, and some plan will certainly be
devised for its settlement ; of that I feel confident. I met the
"bright young lady" the other evening, and we talked about
you. She bid me send you her love, to which I am sure Lady
Bramwell will not object. She came over from Baltimore to
attend a reception given by her aunt, Mrs. Bancroft Davis,
to Sir Edward Thornton, who represented your Government
so long at this place. She seemed even more attractive than
when you saw her. Yours very sincerely,
' M. R. Waite.'
From 1880 to 1885 Lord Bramwell watched Irish
hatred and Irish disorder growing from a half-comic

282 A MEMOIR OF LORD BRAMWELL
thing into an apparently deadly thing."" After
December, 1885, contempt and dislike changed into
wrath — perhaps exaggeration. English Liberals of
Lord Bramwell's stamp, seeing, from the Maamtrasna
debate, that the Tories were still the Tories, said,
' We, then, must subdue this deadly thing ?' and
tried for five years, in their rather blundering way,
to subdue it. One day, in December, 1890, 'the dis
ruption ' came, and English Liberals concluded that
The Thing had outwitted them, after all, by stinging
itself to death.
Burke had warned his countrymen of the tendency
among revolutionary and destructive groups or com
binations in politics to revert to barbarism, to settle
questions by savage methods. This reversion pro
ceeds by steps, of which the first is denial, repudia
tion of law and order — the accoutrements of justice.
That which Lord Bramwell cared most about from
first to last was the lawlessness which disfigured, not
only the Land League executive and its functionaries
in Ireland, but also advocates and apologists for
Home Rule, residing out of Ireland. A letter to
the Times, October 29, 1889, gives the key to his
unflinching ' Unionism ' :
' Mr. Gladstone and the Plan of Campaign.
' I doubt if it is worth while, but there is one matter in
Mr. Gladstone's speech reported in the Times of yesterday
* The Duke of Argyll wrote to him, June 6, 1884 :
' . . . The Land Act of 1881 has never been properly exposed
in its working and operation. I agree with you that the
administrators are far less to blame than the legislators. They
were given no law, or shadow of a law, to guide them.'

PREJUDICE 283
which I think should be noticed. He says : " I believe I am
right in saying that the Plan of Campaign has been declared
by sufficient legal authority not to be legal. If that be so, I
justify nothing that is not legal." He probably means : " If
that be so, since I justify nothing that is not legal, I do not
justify the Plan of Campaign." Why this great master of
words did not say so, does not appear. He proceeds : " Mr.
Parnell has never given a distinct approval to the Plan of
Campaign." What does he mean — that an approval of what
is not legal is less wrong if indistinct, or that, if Parnell's
approval had been distinct, he (Mr. Gladstone) would have
approved ? Is not Parnell guilty of suffering, permitting, and
approving of what he could stop ? And even if he is not, are
not Mr. Gladstone's confederates — O'Brien, Dillon, and others
— guilty of a distinct approval and practice of what he (Mr.
Gladstone) will not justify ? Mr. Gladstone proceeds : " I
admit the Plan of Campaign has something to say for itself,"
and says the Government and majority in Parliament are the
true authors of the Plan of Campaign. " They made it an
absolute necessity." If an absolute necessity, how is it pos
sible not to approve of it ? How can one disapprove of what
could not be helped ? . . . But if that is why the Plan of
Campaign was started, is there any pretence for saying that is
why it is kept on foot ? If it merited an approval (provided
it was not distinct) in 1886, is there any excuse for it now, or
in 1887, 1888, and 1889? ' Your obedient servant, 'B.'
Lord Bramwell's view of law and order being the
recognized view, and that of the Land League being
for a long time also the recognized view, his opinions
came to represent a sort of professional jealousy —
prejudice in favour of his own trade-brand. The
Land or National League — for some years the de
facto Government over a large part of Ireland — had
been compelled to set up — as all Governments must

284 A MEMOIR OF LORD BRAMWELL
do — a rival system of jurisprudence of its own. It
established tribunals, judges, a corpus juris Hibernici,
praetors, jurisconsults, police. If a subject wanted
justice from a Land League Court, he could get it,
provided he ' stood in ' with the parish priest's
nephew, feed the principal local Land League
organizer, or was on good terms with the adjacent
gombeen man's mother-in-law. Thus there was a
legal remedy for every wrong. This Land League,
too, had its Right Honourable Justinian — or
Gratian of Chiusi — whose explanatory speeches and
writings in defence of Land League jurisprudence
between December 1885 and 1892 are Institutes
and Decretals combined. A ' Digest ' was drawn up,
various glosses and extravagantes being added from
time to time by independent local agents of the
Land, or National League in Ireland itself. There
upon Lord Bramwell, like Demetrius the silver
smith, began to think his own craft in danger.
To the very last the Home Rule spectre (and a
vision of the blood for ever wet upon the grass in
Phcenix Park) haunted Lord Bramwell, as it did
millions of other men in those half-forgotten days
between May, 1882, and August, 1893. The last
speech he made in the House of Lords (on a
Scottish topic) had a reference to Irish lawlessness.
In October, 1885, an Irish Defence Union was
formed in London to checkmate and frustrate the
system of boycotting, then unrestrained in Ireland,
and to give help to victims. Like the Pinkerton
agency in the United States, an interesting example
of those jury-rigged, or makeshift, defences con-

THE ' IRISH DEFENCE UNION' 285
trived by civilized men when constituted authorities
are unable, unwilling or afraid to protect liberty and
property. The quaint thing about this Union was
Lords Bramwell and Penzance, and any number of
magistrates, confederating in a room at 22, Charing
Cross to do in their leisure hours what other Judges
and magistrates were appointed to do in working
hours. The first time Lord Bramwell attended a
meeting of the Union at 22, Charing Cross, he was
a little late. Excusing himself, he touched on an
obscure problem of West-End geography. Said
he : ' I suppose I call myself a Londoner — in fact, a
Cockney. I thought I knew London pretty well,
but I have wandered about for half an hour trying
to find 22, Charing Cross. I tried St. Martin's
Lane, the Strand, Cockspur Street, and went back
to the Athenaeum to inquire, but never knew where
22, Charing Cross was till this minute. I always
supposed the street running down to the Houses of
Parliament was either Whitehall or Parliament
Street.' In January, 1886, when he was in the
chair at a meeting of this Union, a wealthy Irish
merchant present offered to subscribe largely to the
fund for coping with boycotting, provided his name
was not published, otherwise his own goods would
be boycotted, and he would lose heavily. There
upon Lord Bramwell uttered in a very decided tone
this Johnsonian sentiment : ' Sir, you remind me of
a soldier who would not mind fighting in a battle,
provided it could be guaranteed he was not to be
wounded.' Upon this rebuke, the merchant, like
Thomas surnamed Didymus, publicly joined the

286 A MEMOIR OF LORD BRAMWELL
organization. The late Earl of Pembroke greatly
helped the work of the Union. Lord Bramwell's
keen interest in it is shown by the following letters
to the zealous honorary secretary, Colonel C. H.
Davidson : ' 34, Cadogan Place,
'December 17, 1885.
' Dear Colonel Davidson,
' I return the draft. I am afraid I have made many
alterations, but it is more methodical. (1) It concerns
Britain ; (2) because of trade and in case of war ; (3) it con
cerns North of Ireland, and so on ; (4). it concerns rent of
Ireland, because of plunder ; (5) people are punished who will
not assist ; (6) they are compelled to seem to assist ; (7) we
must help them, and money is wanted.
' I cannot attend the meeting to-morrow. I am boycotted
by a cold and influenza, bad enough to be Irish, or some
thing else which ends in -ish. ' Very truly yours,
' Bramwell.'

' Four Elms,
'December 26, 1885.
' Dear Colonel Davidson,
'. . . . Could you say something like this, "Force must
be used if necessary to prevent this separation " ? That, it
will be said, will bring about a rebellion. A bad thing ; but
if there is to be one, it had better be when it suits the followers
of law and order, than when it suits the rebels. At present
law and order, and the power of the State, are on our side.
After a year or two of Home Rule, all guarantees would be
blown away ; property-owners would have been robbed ; law
and order would have ceased, and the power of the State in
Southern and Western Ireland would be in the rebels. Re
bellion ! Why, there is rebellion now ! The law is power
less. Murder, robbery, outrage, go unpunished, and treasonable
intentions are openly avowed. Give Home Rule, and in a few

TACTICS 287

months rebellion would be manifest and avowed. Let us have
it now rather than then. . . .' 'January 4, 1886.
' . . . . We should remember : (1) The Irish tenants are
for separation as a means of plundering the land-owners. Why
should they not ? They do not think it wrong. Their leaders,
lay and clerical, say it is right. (2) Though I do not think
there is a general hatred of the English, such as existed in
Milan and Venice against the Austrians, still, there is a deep
and deadly hatred in many toward us, which would make
Ireland a hostile country if separated. (3) If the landlords
are ruined, separation becomes easier. (4) If the constabulary
and police are put in Parnell's hands, we at once have a stand
ing army against us. (5) Self-preservation then compels us to
protect the landlords and prevent separation. (6) We cannot
abandon Ulster. Lord Cowper says the Land Act [of 1881 ?]
was right. I cannot, with sincere respect for him, agree. It
established the principle of plunder. The Parnellites are only
carrying it further. If there is anything wrong, let the Irish
say what it is. I agree with the Duke of Argyll that the
Catholics ought to have denominational schools. . . .'
Lord Salisbury, Premier, resigned January 27,
1886. On January 31 Lord Bramwell wrote :
' .... I think there is as good reason for a deputation to
Gladstone as there was for one to Lord Salisbury. We meant
to strengthen him ; we wish to cripple the present fellow. But
our object is the same, viz., to prevent a dissolution of the
Empire. ... I do not see that our memorial (I protest
against your calling it petition) wants any alteration. It is as
true now as then.'
February 12, 1886, a curious letter from Mr.
Gladstone to Lord De Vesci invited :
' free communication of views from the various classes
and sections most likely to supply full and authentic know
ledge of the wants and wishes of the Irish people, I mean

288 A MEMOIR OF LORD BRAMWELL
of all classes of Irish people, whether belonging to a majority
or a minority, and whether they may be connected with the
land, with industry, or with property in general. . . ."
The Defence Union accepted the challenge to
take part in the Spelling Bee thus suggested, and
did send Mr. Gladstone a reply, shortly afterwards,
signed by Lords Pembroke and Bramwell.
Meanwhile Lord Bramwell had written, Feb
ruary 1 8, 1896 :
' ... I do not suppose it would be the least use to send
Gladstone anything — even a message from heaven — so far as
influencing him is concerned ; but a good stinging letter to
him, if we could get it published, might do good. At all
events, it would prevent his saying that he invited information
and got none. . . .'
Concerning a proposed deputation to the Lord
Mayor in the following year, he wrote, January 7,
1887: ' . . . You know better than I do who should go. The
Duke of Westminster is an impressive speaker, Lord Pem
broke is first-rate, Lord Longford is very good, so are Lord
Belmore and Lord Powerscourt. Lord Hillingdon is weighty,
Sir Whittaker Ellis would be good, so Mr. Grenfell. (Of
course, keep these names to yourself.) . . . Our meeting or
deputation is an advertisement. We must keep on showing
our intents and wants — what we do and why we want to
do it. . . .'
May 26, 1889, of a rather florid speaker on his
own side, he wrote :
1 ... I do not very much admire  's oration. It might
be good as one, but is poor as a writing. There is no contempt
of court in it ; besides, I think everybody is sick of that non
sense.'

' THE TRUTH ABOUT HOME RULE' 289
Enclosing draft of a letter, which appeared in the
Times, headed 'A Cruel Case of Boycotting,' he
wrote : 'April 28, 1890.
' . . . All you want me to do is to write to the Times saying
we have sent Quinlan £10. Surely you are the right person
to do that as honorary secretary, and I would rather you did.
It might be as under. ... I think we ought not to be
receiving money. Take my own case : I shall give nothing
this year. How can I receive from others ? . . .'
At the end of 1887 it occurred to Sir George
Baden Powell to refute the errors contained in ' A
Handbook to the Home Rule Question" by pub
lishing a series of essays by personal friends under
the title of ' The Truth about Home Rule,' hence
these letters : ' Four Elms,
' Edenbridge, Kent,
'November 14, 1887.
' Dear Sir,
' I had not heard of the " Handbook of Home Rule." I
think it will be a good thing to meet it by a similar work.
I will do my best to write something, but I am a bad hand.
I can't write unless coxswained by my subject. You must not
limit me, therefore. If what I write does not suit you, put it
unceremoniously in the waste-paper basket.
' Yours faithfully,
' Bramwell.
' G. Baden Powell, Esq., M.P.' 'November 20, 1887.
' . . . I send my paper on Home Rule. I am not satisfied
with it. It contains nothing new, and does not state what is
old with any particular vigour or incisiveness. Do what you
please with it. If not good in itself, or not so good as any-
19

290 A MEMOIR OF LORD BRAMWELL
thing on the same subject, put it in the waste-paper basket.
It is vilely written. I suppose if you determine to print it I
must revise the proofs. . . .' 'February 24, 1888.
' . . . I do not know that I can mend my paper in substance,
but there are two misprints to correct, and some things would
be better expressed, if the expense is not too great. Page 51,
"garb" should be in italics. "Probably not the speaker"
would be better expressed " probably not the man who used
the word." " But the law " should be " but the land." Page
53, strike out the sentence, "If a farm" down to "right for
the second," and substitute, " If a farm, over and above a fair
return for the capital and labour expended upon it, produces
£10, that ^"10 is rent. . . ."
Some more corrections are added, and the letter
winds up :
' ... I am very glad that the thing has been a success.'
This graceful letter to him of February, 1886,
illustrates those fine courtesies which are the anti
septic ingredient in English party politics. But
the following article on ' Coercion,' in the Liberal
Unionist, April 13, 1887, seems to show that, spite
of the conventional civilities, a deep gulf was fixed
between these two sworn guardians of law and order :
' My dear Baron,
' Pray accept my heartiest thanks. When I was apply
ing to be made Q.C. fourteen years ago, and expressed the
obligations I owed to you, you told me that I was the real
cause of my own success. I then replied that if I was the
causa causans, you were the causa sine qua non. As that was a
step to this, you will see that you are to some extent respon
sible ... so I hope you will bear this in mind when disposed to
be severe on, it may be, political or economical heresies. . . .'

'BLEEDING ERIN' 291
To the third issue of the Liberal Unionist,
April 13, 1887, Lord Bramwell contributed a paper
on : ' Coercion.
' The Executive Government of this country, charged with
the maintenance of law and order, has introduced a Bill into
Parliament for that purpose. Messrs. Gladstone, Parnell, and
their followers persistently and carefully call it a Coercion Bill.
It is not, and they know it ; but their consciences not troubling
them, they are politic and wise in calling it what they do. For
coercion is a hateful thing to Englishmen, and the word is a
hateful word, and those who think the word truly describes
the Bill, and that the Bill is the hateful thing "coercion," will
naturally oppose it. What's in a name ? Nothing in itself.
But if the name is false, and means something other than the
truth, there is a great deal in a name. Let us see what is the
truth as to this Bill.
' There are parts of Ireland where the law is inoperative,
where crimes are committed with impunity — murder, attempts
at murder, arson, destroying, burning, and maiming cattle,
threatening letters, stealing of arms, midnight attacks on
houses, assaults, threats, intimidation. One may mention, as
an instance, cutting off the hair of two young women, and
covering their heads with tar.
' It is not necessary to go into statistics, not necessary to
inquire whether there are more now than at some former time.
It is enough to say that these crimes exist in parts of Ireland,
unpunished, to such an extent and in such a way that the law
is powerless. Power is in the hands of those who break the
law ; life and property are at their mercy, and peaceable and
orderly persons are in constant terror that they and those most
dear to them, their persons and the fruits of their industry,
may be attacked, injured, and destroyed.
' Of course, no one of repute or authority justifies this —
openly. The misguided wretches who commit these crimes
may think they are right, and there doubtless are those above
them in station who secretly tell them so ; but there is a dis
creditable want of condemnation of these barbarous and cruel
19  2

292 A MEMOIR OF LORD BRAMWELL
outrages from those who have still some character to lose.
Instead of a loud and indignant denunciation of them, there is
something like an attempt to extenuate or palliate them. An
English lawyer has said it was some excuse that they are
committed to reduce rents ! What is that but for gain or
profit ? And what was the motive of the men who murdered
the unfortunate woman in Kentish Town to get her safe and
money but gain and profit ? This gentleman should remem
ber that those who are the victims of these crimes are satisfied
that they are in the right, that they have done nothing which
should be punished by law or lawlessness. Does anyone
suppose that poor Curtin and his unhappy children had a mis
giving that they were doing wrong ? Mr. Gladstone has
attempted to extenuate the filthy outrage on the girls whose
hair was cut, and who were tarred, by saying that the pitch-
cap was an invention of the yeomanry, I think, about the year
1798! Well might he pray for a majority at the election in
1885 if he foresaw that for want of it he might be tempted to
utter this disgraceful thing. Unfortunate for his character
and reputation has been his study of Irish history. With
these encouragements, and the feeling of the offenders and
parts of the populace, and the approval of the priests, it is
hopeless to expect that the crimes I have mentioned will
diminish except by force of law. At present that does not
exist. Let us see why.
' Crimes are unpunished. Terror prevents their discovery.
Terror prevents their prosecution. Terror prevents honest
evidence being given, and worse than all, when difficulties are
got over, terror or dishonesty prevents a true verdict according
to the evidence. There can be no doubt of this. Juries are
threatened. They are held up to hatred and scorn and revenge.
The names of those who would convict are made public.
There can be no doubt that false verdicts of "Not Guilty"
are given, and that when that cannot be secured the jury are
discharged, because among them was one, perhaps more, who
disregarded his oath and refused to say the truth.
' This is the condition of things which the Government Bill
seeks to alter. What should be its provisions is a fair subject

' GILDING DEFECTS' 293
for discussion. Those in the Bill may be more or less than
needed for the object. But they are not "coercion." They
are to make the law in Ireland what it is in England and Scot
land — respected and obeyed. Unless that respect and obedi
ence are coercion in England, they will not be in Ireland.
' Bramwell.'
A letter dated January n, 1892, from a distin
guished man, who differed from him fundamentally
on Irish questions, began thus, the reference being
to some irritating but quite baseless newspaper
criticism :
' My dear Lord Bramwell,
'. . . You are the only survivor of the three Judges from
whom, in the early days of my utterly friendless struggle at the
Bar, I mainly received words of kindness and encouragement ;
the others were Mr. Justice Willes and Baron Martin. I
should indeed be grieved if any statements . . . should in the
least degree dim the good opinion of me which (I believe I am
right in thinking) you have hitherto entertained. . . .'
Here is a Times letter of no great polemical
value — in effect, a contemptuous way of saying :
' Just listen to this man ! What is he not capable of ?'
' Mr. Gladstone's English.
' In your Monday's paper you say, " There is not the
slightest sign that Mr. Gladstone is disposed to drop Home
Rule." Not the slightest. He is as bad as ever. In the last
number of the Nineteenth Century he speaks of the " devilish
enginery " of the means employed to bring about the Union
(P-5). ' In the same paragraph are some passages worth notice.
" Our judgment on the age that last preceded us should be
strictly just." Why on that age in particular ? " But it
should be masculine, not timorous ; for if we gild its defects

294 A MEMOIR OF LORD BRAMWELL
and glorify its errors, we dislocate the axis of the very ground
which forms our own point of departure."
' By gilding defects and glorifying errors an axis would be
dislocated — that axis is an axis of ground, and that ground
forms a point of departure ! Is not this somewhat in the style
of a barrister who said to a jury, " Gentlemen, I smell a rat ;
I hear him brewing in the storm, but his thunder is moon
shine " ? Had the barrister any clear notion of what he was
talking about ? ' Your obedient servant, 'B.'
But memorable as in effect a rebuke from a re
nowned English Judge and member of the highest
Court of Appeal in the Empire to a man who had
been three times Prime Minister of England, the
same man who six years before had written to Sir
George Bramwell at Barcelona :
' 10, Downing Street,
' Whitehall, 'December 8, 1881.
' My dear Sir,
' I have the pleasure of proposing to you, with the
sanction of Her Majesty, that you should be raised to the
peerage. You will, I hope, accept this offer ; and if such
be your judgment, you will, I am sure, contribute greatly to
the efficiency of the House of Lords in the discharge of its
judicial functions ; while the honour to be conferred on you
will be recognized by the world as no more than a just tribute
to your long service and the great eminence attained through
your abilities and learning. ' I remain, my dear sir,
' Faithfully yours,
1 W. E. Gladstone.
' Rt. Hon. Sir G. W. W. Bramwell.'
Possibly remembering how the Solicitor-General
ship had been ' somewhat strangely vacated ' by Sir

SUPEREROGATION? 295
R. Collier in October, 1871, Sir George Bramwell
took care to ascertain that Lord Selborne, Chancellor,
had concurred in this offer, before finally accepting
it. Meanwhile he had written to some faithful
friends at home : ' Avignon,
' December 13, 1881.
' . . . What do you think ? I got a letter from Gladstone
this morning offering me a peerage, and I have accepted. Of
course I am pleased. Lady B. is very pleased, but for my
sake. I told Gladstone I was on my travels, but I suppose it
can be done in my absence. The thing that pleases me most
is that I shall be kept among old friends and old pursuits. I
shall live all the longer for it. What title shall I take ? I
think it must be " Bramwell." . . . This is all very fine, but
a greater pleasure is that this infernal weather has not given
Lady B. any cough, nor harm, that I can see. ... Of course,
the offer is no secret, but I don't want people to suppose that
I can't keep quiet about it.
' G. Bramwell.'
Most of what Lord Bramwell wrote on the political
or ' Separatist ' aspect of the Home Rule controversy
(next to that about Free Trade, the most elaborate
tournament of opinion the nation has ever seen) is
omitted. In substance it may be found in contem
porary speeches and writings of distinguished
Unionists, and all reads now like old news not yet
ripened into history. As to the work of steering
public opinion, so well done by Liberal Unionists
(they contributed the brains), some persons may
wonder in these days whether the whole of it was
really needed. J. A. Froude said, in 1886, of the
Home Rule controversy, that one day John Bull would
wake up. pull on his big boots, and kick somebody ;

296 A MEMOIR OF LORD BRAMWELL
which is perhaps what happened in the end, irre
spective of all the weighty speeches and letters,
many of them only read by specialists and leisured
enthusiasts. A long letter of Lord Bramwell's to
the Times, January, 1891, meant in all good faith
to convince Mr. Arthur  (a gentleman who
wrote in the character of an English Nonconformist
Home Ruler sincerely anxious to be convinced),
makes one suspect that a vast amount of temperate,
judicial reasoning, much patiently repeated refutation
of the same incredible statements and arguments,
may have been wasted by Liberal Unionists in those
years. The Times letter of January, 1891, in reply to
Mr.  , indicates that Lord Bramwell held stricter
views about breach of marital relations than ' great
men ' are conventionally supposed to hold.
' . . . Their principal leader . . . has been shown to be
party to as filthy a case of adultery as could be conceived. I
would not be supposed to palliate adultery. It is always a
crime — a crime to the husband, to the woman. But when an
unhappy passion has seized the offenders and they give way to
it, objects of blame as they are, they are almost objects of pity.
In this case a friend's wife is debauched for six years. The
filthy intercourse is continued, the woman shared by the
adulterer with the husband ; every dirty, false pretence re
sorted to to gratify a lust which showed no respect for the
woman. Is this a man to be trusted ? Would any decent
man shake hands with him, or deal with him, buy of or sell to
him ? Why trust him as a party leader ? . . .'
When one comes upon a Times letter of 1885,
beginning, ' Lord Hartington said at Belfast, " The
people of the United Kingdom will never assent to

POLITICAL PRISONERS 297
the practical separation of" . . .' one can, without
difficulty, imagine the rest. A Times letter, signed
' B.,' December 3, 1887, on ' Political Prisoners,' deals
with a question of constitutional casuistry hotly dis
cussed for centuries, and, as manifestations of public
opinion on more recent incidents in South Africa
show, quite unsettled still.
' Who or what is a political prisoner ? Definitions are diffi
cult, but we may give instances. Guy Fawkes was a political
prisoner. Mr. John Cade would have been, if not otherwise
disposed of. The three men who murdered Sergeant Brett at
Manchester for doing his duty were political prisoners. The
man who meant to fling dynamite into the House of Commons
is a political prisoner, and so are those who stabbed and
stoned the police in Trafalgar Square. So, I suppose, are the
men who murdered Whelehan.
' Now, without attempting a definition, we may draw an
inference from these cases, and say that a political prisoner is
a man who is dissatisfied with the law or its administration,
and who breaks the law to procure a change in it or its
execution. ' This definition or description includes all breakers of the
law with the object of procuring a change in it or its ad
ministration. There need be no violence. Treason may be
committed very peacefully. Sedition, holding forbidden
assemblies, publishing forbidden publications, are all, like
treason, forbidden. The man who does any of them for the
purpose mentioned commits a political crime, and, if in prison
for it, is a political prisoner. Mr. O'Brien, then, is a political
prisoner. So will Mr. C. Graham be if convicted.
' Now, is there any reason why political prisoners should be
better treated than others ? No doubt their offences are less
low and dirty than picking pockets. Perhaps a murder is less
revolting when committed for political considerations than
when committed for gain. It may be that the three who
murdered Brett, and political criminals generally, are less
horrible than those who murder or commit other crime for

298 A MEMOIR OF LORD BRAMWELL
profit. But they are as mischievous, and much more so.
And, paradoxical as it is, the very fact that the crimes do not
inspire the same aversion, contempt, and hatred, makes neces
sary severer punishment.
1 If a man picks a pocket or steals a sheep for the gain, he is
at once despised by his fellow-creatures — at least, by those
whose good opinion he values. But if he murders a policeman
who is doing his duty, and is most properly hung for his crime,
he is called a martyr, and his memory is honoured by a chief
priest and other ministers of his religion, who, I think, must
have forgotten the Sixth Commandment, or read it with a
qualification, thus : " Thou shalt not kill, unless for political
purposes." I ask, in all sad seriousness, is it not certain that
the horror of taking life, the feeling that he who does so will
be looked on as a Cain, is taken away by this ; and with it
taken away one of the strongest deterrents from crime, viz., the
desire of the good opinion of one's fellow-creatures ? And let
it be remembered that political crimes, like other crimes, must
be dealt with, not according to the opinions and feelings of
those who commit them, but according to the opinions and
feelings of those against whom they are committed, while
power remains with them. " You think it right to shoot a
policeman. We think it wrong — most wicked and mischievous.
We think it right to hang you, and hang you without provid
ing a silk rope on account of your motives."
' Consider the position of men who rebel — I am not going to
repeat the old joke. A successful rebellion almost presumes
its justification — at all events, it cannot be punished. But an
unsuccessful rebellion, the use of force with the object of
rebellion, and of sedition to excite the use of force or terrify
those who object — these are the worst of crimes, and involve
the possibility of more deaths, wounds, destruction of property,
and misery than all other crimes in the code put together.
' And see the temptations to commit them. Let us suppose
those mild and orderly gentlemen, the Home Rulers, should
be minded to separate Ireland from Britain, which, of course,
at present is far from their intention. What would be their
reward ? Possibly one would be King of Ireland or President

THE ORTHODOX REMEDY 299
of the Irish Republic ; others, Commander-in-Chief, Lord
Chancellor, Chancellor of the Exchequer, and so forth. If
they tried and failed, on the other hand, they would be patriots,
perhaps martyrs, beloved by their followers, and honoured
with statues and monuments. It is a tempting game —
immense profit if successful, great consolation and honour
if not. ' This is the political prisoner — the most mischievous of all
offenders. Are we to treat him with consideration because he
is not ashamed of himself, because he is not a thief, but ten
times worse? I say "No," and trust the good sense of our
people will not permit it. ' Your obedient servant, <B.'
A letter of September, 1886, about that Bill of
Mr. Parnell's the rejection of which was put forward
as an excuse for the Plan of Campaign, shows that
Lord Bramwell, after sixteen years' consideration of
the Irish Land Act of 1870, held that the principles
of political economy and Anglo-Saxon jurisprudence
did apply to Ireland, as well as to other parts of the
kingdom. ' Mr. Parnell's Bill.
' I earnestly hope the Government will oppose every part of
Mr. Parnell's Bill. It recites that, " having regard to the
great depreciation in the prices of agricultural produce since
the greater number of judicial rents of tenancies were fixed, it
is expedient to make temporary provision for the relief in cer
tain cases of the tenants of such holdings." This is the reason
given, and, as you have shown, it is untrue. Next, it enacts
that where certain rent has been paid, and the tenant is unable
to discharge the remainder without loss of his holding or depri
vation of the means necessary for the cultivation and stocking
thereof, the Court may make such an abatement of the rent as
may seem to them "just and expedient." There is here no
restriction to cases where the tenant is unable to pay owing to

300 A MEMOIR OF LORD BRAMWELL
the fall in the prices of agricultural produce. The tenant's
inability may arise from his bad farming, his neglect, his sub
scription to the League, money paid for drink ; but if unable
to pay he may have an abatement. If it should be said that
the Act is only intended to apply to cases where the inability
arises from the depreciation, it had better be so said. But,
then, what a question is opened !
' Further, suppose there is a case where the tenant is unable
to pay owing to a fall in prices, why should he continue to hold
his land at a less rent ? Why should he not give it up to his
landlord, as he has agreed to do ? What would be the case in
England or Scotland ? Oh, but, says the arch-phrasemonger,
there is a " land hunger " in Ireland, and so the tenant must
be protected from agreeing to pay the rent he would agree to
payif left to himself. Hence the Land Acts of 1870 and 1881,
and in effect the present proposal.
' I believe, myself, that these Acts are at the bottom of the
present state of things in Ireland. I once visited a prison and
was shown a prisoner who could earn thirty shillings a week
at his trade of a shoemaker. I said to him I thought that was
better than imprisonment. He looked at me rather contemp
tuously, and said, " Why should I work for that when I can
get twice as much without work another way ?" This is the
feeling of Mr. Parnell's supporters in the Irish tenantry.
Why should they pay their rent when by not doing so, but by
murdering, moonlighting, boycotting, and the like, they can
plunder their landlords further and get the land for less ? By
such means they have got their land on the present terms, and
by such means they hope to get it for less.
' But there are the Acts ; and, as the Marquis of Salisbury
has said, it is impossible to repeal them. But at least the
mischief can be prevented going further. If the tenant cannot
pay the judicial rent, let him give up his land and let the terms
on which he shall hold it be matter of bargain between him
and his landlord. It is idle to suppose that there would be
wholesale evictions even if the rent could not be paid. If the
farmer has a hunger for land, the landlord has a hunger for
tenants. He can no more do without them than the farmer

PONS ET ORLGO MALI 301
can do without land. Let the reasons of good sense and poli
tical economy which were flippantly banished to Jupiter and
Saturn once again prevail ; let people make their own bargains,
and let the law enforce them, and we shall have peace and
order again.
' As to the proposal that proceedings to recover rent or pos
session shall be suspended while an application for reduction
of rent is pending, it is monstrous. What would be thought
in England of a law which stayed proceedings to recover rent
or possession till the tenant had shown or failed to show that
he had agreed to pay too much rent ? In Ireland it is worse
than it would be here, because, as you have said, the landlords
by Act of Parliament had a fourth of their rents taken from
them, on the terms of being paid the residue, or of having
their land restored to them. Further, there is, as you have
pointed out, the power in the County Court Judges of staying
execution. But there is a " land hunger," and there is a
League. ' Your obedient servant, 'B.'

[ 302 ]

CHAPTER IX.
ANTI RAILWAY AGITATION — TITHE RENT-
CHARGE— WATER RATES — COPYHOLD — COM
PANIES ACT, 1862.
Attack on railways ; partly an incident in campaign against
capitalism — Partly the attempt of harassed farmers and
manufacturers to find compensations for injurious legis
lation — His letters to Economist — The 'Preference to
Foreigners' mare's nest — Penal legislation in 1888 — Its
futility — Tithe rent-charge — Land-owners' effort to find
compensation for injuries done to them by Parliament —
His letter explaining statutory bargain made — Lord Bra-
bourne's plea for some kind of confiscation — Torrens's Act
of 1885 — Lord Bramwell in Economist and Times on rights
of water companies — Extent of confiscation under Act
of 1885 — Copyhold Bills — Echo of campaign against
landlordism. Proposals to compel copyholders to become
freeholders nolens volens — His protest in press and Parlia
ment — Reminiscences of Royal Commission of 1853 and
Companies Act, 1862 — Word ' limited.'
Agitation about railway rates between 1874 and
1894, and legislation consequent, have no repulsive
elements, no gangrene of injustice to innocent indi
viduals such as the Irish confiscations of 1870, 1881
et seq. exhibit. The ' innocent parties ' assailed never
actually suffered much, since the economic penalty,

BLIND MAN'S BUFF 303
direct and indirect, for threats, hostile legislation, etc.,
has fallen mainly upon those farmers and ' traders '
who, between 1874 and 1894, further developed
that short-sighted policy initiated by foolish or greedy
landowners after 1836. Exactions by the latter
class in early days burthened British railways with
enormous capital expenditure, interest on which has
to be paid for ever in one way or another by the
travelling and trading public. So soon as events
convinced silly land-owners that railways benefited,
instead of damaging them, the still sillier Reformed
Parliament took up the work begun by land-owners ;
ruinous Standing Orders and pettifogging absur
dities in Committees between 1836 and 1846 com
pelled further useless capital outlay, amounting to
from ten to fifteen millions sterling, interest upon
which also has to be paid for ever by railway-users
mainly. After 1870 Parliament turned its attention
to land-owners. Increased taxation, statutory break
ing of contracts, State-made insecurity of landed
property generally (all intended to benefit agricul
tural tenants) naturally reacted upon English tenants
themselves, who, groping about in the dark to find
the origin of their misfortunes, were told by persons
as uninstructed but more eloquent than themselves,
that ' the railways ' were to blame. ' Railways '
were rich. Parliamentary interference had forced
upon them successive combinations in self-defence,
thereby, as Stephenson said, making free competi
tion among these carriers impossible. The inland
carrying trade on a mighty scale, the determination
of millions of freight rates, are difficult matters —

304 A MEMOIR OF LORD BRAMWELL
easy, however, for ' traders ' to make misstatements
about in grammatical language. Between 1874
and 1894 agriculturists and 'traders' asked Parlia
ment, which had done so much to blight British
agriculture and was doing the like for industry, to
make the most elaborate and successful system of
land-transport ever devised more costly, insecure,
hazardous, for shareholders, less advantageous to
the public ; and asked not in vain.
In July, 1884, professional vote-brokers in the
House of Commons had invented a new Standing
Order, giving chambers of commerce and agricul
tural associations a locus standi before railway com
mittees, so that they might more effectually black
mail companies seeking new powers under existing
Acts — in the way Lord Bramwell describes below.
The House of Lords, at that period unwilling to do
conscious injustice, altered the Standing Order by
limiting ' the trader's ' power of intervention to cases
where companies sought new Acts, not new ' powers.'
This righteous alteration, the Economist said, ' de
prived the new Standing Order of much of its
value. . . . Parliament could reduce existing rail
way rates at pleasure,' etc.
On August 2, 1884, Lord Bramwell wrote :
' Railway Rates and Fares.
' I am sorry the Economist disapproves of the alteration made
by the Lords in the proposed Standing Order as to railway
Bills. The proposal, to my mind, was most unreasonable. It
amounted to this : if a railway company, doubtless for its
own good, asked Parliament for powers the exercise of which
would also be for the good of the public, those powers were

IMMORAL RAIL WA Y COMPANLES 305
not to be given unless the company made some sacrifice of its
existing rights. I say of its existing rights, because if the
complaint is that the company is doing wrong, there is the law
to set them right, and I say ' asking for powers the exercise of
which would be for the public good,' because unless it would
be the powers ought not to be granted, however free from com
plaint the company might be. See how it would work. A
railway company goes to Parliament for powers to enlarge its
station, or make a branch line, no doubt having in view its
own profit. On inquiry before Committee, it appears that
the enlargement of the station or making of the branch line
will be a great convenience to the public, but a chamber of com
merce has made out that hops are carried on terms lawful, and
profitable to the company, but inconvenient to traders. What
is the Committee to do ? Throw out the Bill unless the com
pany will make more sacrifice ? Impossible. They ought no
more to do so than if the powers were sought by an independent
company. To do so would be to say, " Unless you give up a
lawful right you have, we will inconvenience the public."
But unless they ought to do so, no one ought to be heard to
ask them to do so. The company asks for a boon, but a boon
to the public as well as to themselves. 'B.'
In February, 1886, the Gladstone Government
had promised a Railway Bill, ' embracing ' Railway
Commissioners with great powers. At the London
and North- Western meeting the chairman pointed
out (as had been done often) that if the company did
not compete in freights with steamships, goods would
be carried to London by water instead of by rail.
This, the Economist remarked, meant ' if we acted
according to the law which forbids discrimination '
(there was no such law), ' we should be out of
pocket ; therefore we are justified in breaking the
law ;' went on to compare the case of a railway
20

306 A MEMOIR OF LORD BRAMWELL
company's cashier who complained that he was
unable to get rich by stealing the company's money
— because stealing was clearly against the law —
with the policy of railways and in respect to com
peting through rates. It was also asserted that
companies charged exorbitant way rates to make
up for what they lost on through rates- — 'reduced
to benefit the foreigner.'
On February 27 ' Inquirer' asked the Economist :
' (1) Are low competitive rates given solely to foreigners ?
How about coal carried by railway from Durham and South
Wales in competition with carriage by sea ? (2) Are " dif
ferential" rates really illegal ? (3) Do railways carry on their
competitive through traffic at a loss ? If they are prevented
by Parliament from carrying such traffic, does it follow that
they will lower way freights ? And if so, why ?'
No answer has been given to the arguments indi
cated by these questions.
On March 6 Lord Bramwell wrote :
' When you answer the questions of " Inquirer," will you
favour me with an answer to the following :
' (1) If differential rates are wrong, is the wrong to be
remedied by lowering the high or raising the low rate?
(2) Would not a compulsory lowering of the high rate be
unjust and confiscation ? (3) Would raising the low rate
benefit the public in any way ? ' Your obedient servant, 'B.'
Same date the Economist replied to ' Inquirer,'
that railway traffic managers did not themselves
know whether competitive through traffic was carried
at a loss or not ; and to ' B./ that lowering or reducing

FORCE THE ONLY REMEDY 307
rates should be left to railway companies. For Par
liament to compulsorily lower the high rate would
be confiscation. Then a question was asked, to
which Lord Bramwell replied : 'March 13, 1886.
' You ask me whether I think that a railway company is
acting within the law which charges 45s. a ton for the carriage
of Canadian beef, and 77s. a ton for Scotch beef from Glasgow
to London, and are pleased to say that you would value my
opinion highly. I should be sorry to give it without hearing
what could be said for and against such conduct. If not within
the law, I neither uphold it nor defend it ; but I may still ask
whether those who eat Canadian beef would be benefited by its
carriage being raised.
' The case I intended to put to you was one when the dif
ferential rates are both perfectly legal, as, for example, the
carriage of hops from Boulogne by the South-Eastern Railway
Company through Ashford to London, at a less rate than from
Ashford only, and I repeat my question : If the company was
compelled to reduce the rate from Ashford to the rate from
Boulogne, would it not be confiscation ? And if compelled to
raise the rate from Boulogne, would hop-consumers benefit
thereby ? ' Your obedient servant, 'B.
' [" B." says that if, differential rates are not within the law,
he will neither uphold nor defend them. But, surely, before
he talks of confiscation he ought to make sure of their legality,
because it is evidently wrong to characterize as confiscatory
legislation which aims only at enforcing a statutory obliga
tion. — Ed. Economist^ '
In May, 1886, a Railway Bill of Mr. Mundella's
was read a second time. The Economist remarked
there could be no confiscation in the Bill since the
Stock Exchange did not take alarm. Justice in
20 — 2

308 A MEMOIR OF LORD BRAMWELL
respect to rates must be obtained from railway
companies by force. When Lord Grimthorpe said
that railway companies ought to be left to manage
their own affairs, he was talking mischievous non
sense ; railways had a State-conferred monopoly.
Parliament had expressly reserved the right to
enforce revision of rates when it thought fit, etc.
March 27, Mr. J. Buckingham Pope, 'probably a
lawyer,' had intervened in the controversy thus :
' The traders say that when Parliament granted monopolies
to the railway companies, and compelled private owners to part
with their land for railway purposes, it did so in the interests
of the State, and that for the due protection of the State
certain bargains were made with the railway companies. The
traders do not ask for legislation of a confiscating character,
but they require and have a right to insist that the terms
made by Parliament on their behalf shall be strictly adhered
to. . . .'
Subsequently Mr. Pope demanded from the State
drastic measures against railway companies. In the
spring of 1897 a gentleman of this name, 'going
towards Damascus,' was miraculously converted, on
the way, to sound individualistic views by the inter
ference of the so-called Conservative Government
with freedom of contract as between employers and
employed. On March 20, 1886, Lord Bramwell wrote again :
' One more try for an answer to my question. The South-
Eastern Railway carries, or carried, hops from Ashford to
London at a certain rate. They also carry, or carried, hops
from Boulogne through Ashford to London at a lower rate.
Both rates were lawful, and lawful concurrently. My question

INSPECTING A MARE'S NEST 309
is, Would the public gain by the raising of the Boulogne rate
to that of Ashford ? ' Your obedient servant, 'B.'
' [We should be glad to be referred by " B." to'the decision
which establishes the legality of the differential rate on hops
to which he refers. . . . — Ed. Economist.]'
And to the above editorial note as follows (March 27) :
' There is no decision which establishes the legality of the
differential rates on hops which I mentioned. But there is no
doubt about the matter, whatever the hop-growers may hold.'
On May 1 Mr. J. B. Pope wrote again, asking
Lord Bramwell to say how he was wrong in his
law. On May 8 Lord Bramwell did so :
' Mr. Pope is wrong. " Differential " rates are illegal when
they are for the " same services, under the same circum
stances" — 3 Appeal Cases, 1,029 — otherwise not. Even if
his construction was right, he would be wrong in saying, as he
does, that the rate from Boulogne was illegal. The higher, not
the lower, rate is illegal — where one is. . . .'
In the Session of 1887 a Railway Rates Bill was
submitted to Parliament, but withdrawn. On Febru
ary 9 Lord Bramwell wrote to the Times :
' In your paper of Thursday is the following :
' " One speaker said that the Great Eastern Railway charge
twice as much for bringing fish from Harwich as they do for
bringing it from Rotterdam. If the charge from Rotterdam is
remunerative, then they are acting most unfairly and unjustly
towards the people at Harwich. If the contrary, then they
are carrying foreign fish at a loss which has to be made up by
exacting double profits from the home trade." " If they get
less than the average profit from the foreigner, then they must
get more than the average from the native, who is thus directly
taxed to enable his rival to undersell him."

310 A MEMOIR OF LORD BRAMWELL
' I venture to dispute the whole of this, which seems to me
most unjust to the railway. Suppose they carried no fish from
Rotterdam, would there be anything wrong, illegal, or immoral
in the charge they make from Harwich ? Certainly not.
They charge a sum they have a right by law to charge, a right
which they bargained for when they made their railway, a
charge which is not excessive, as shown by the price of their
stock and the amount of their dividends, which have never yet
returned a fair profit on their capital. But if their charge
from Harwich is otherwise right, how can it be wrong because
they carry from Rotterdam, charging, as doubtless they do, as
much as they can get ? They would charge more if they
could. But if they did they would not get the traffic. The
fish would come direct by sea or not at all. They do not
make the Rotterdam rate low to give the Dutch an advantage,
but simply because they cannot help it. They do not exact
double profits from the home trade to make up a loss on the
foreign ; they do not act unfairly and unjustly to the people of
Harwich because they make some profit on the foreign trade.
Suppose A agrees to carry B to X for ios., and then C says,
"Take me there for is.," and A agrees, is any injustice done
to B ? A has his carriage and horse, and will make an extra
shilling by carrying C. He would not have put to for C's
shilling. The railway company has its railway. It would not
construct it to carry Rotterdam fish at the price at which it
carries it, but, the railway being there, it ekes out its miserable
profit by carrying at the rate at which it does.
' You talk of " getting profit from the foreigner." It is the
consumer who pays the carriage, and I should like to know
whether the consumer would be benefited by the carriage of
Dutch fish being raised. If the present state of things is
wrong, how is it to be remedied ? Must the railway lower its
charge to the Harwich fishermen ? To make it do so would be
confiscation. It has bargained for its right. Is it to raise its
charge to the Dutchmen ? It simply would not carry for them
any longer, to its own loss and that of the consumer. .'
In August, 1888, the Railway and Canal Traffic
Act was passed. On February 16, 1880, Lord

END OF THE ANTI-RAIL WA Y RAID 311
Bramwell wrote to the Economist, which then de
manded further interference by the Board of Trade
with railway freight charges :
' I regret to read in your paper of the gth, " Is not the fact
that the company is earning its 15 per cent, dividend a proof
that there is ample room for a lowering of rates ?" Ample
room there may be, but would it be just to lower them ? In
the case of a railway which pays no dividend there is ample
room for raising the rates ; but would a claim to have them
raised for that reason be listened to ? And what an injustice
would be done to present holders by the suggested lowering !
Probably half of them have bought at prices calculated on the
belief that the rights given by statute would not be infringed.
'You ask, to my infinite astonishment, "Is it not the
business of the authority that hands over a district to the
exclusive dominion of one railway company to see that there
are not exacted from it profits far in excess of what similar
undertakings elsewhere are able to earn ?" In the first place,
the district is not handed over to an exclusive dominion.
There is nothing to prevent Parliament giving powers to
another railway company in the same district. In the next
place, excessive profits are not exacted from that district.
Lastly, there is no " exaction." The railway company has
made a good and fortunate bargain with the State, and avails
itself of its rights. Confiscation is popular with many, but
alas that the Economist should be among them ! 'B.'
But apparently in the case of gigantic concerns
like British railways (and brewery companies) no
part of the loss due to hostile or vexatious legislative
interference falls directly upon the class struck at —
shareholders. Any artificial restraint, or destruction
of trade which impoverishes the community does
indeed indirectly but surely injure railway companies
in the long-run, because they prosper only when

312 A MEMOIR OF LORD BRAMWELL

their customers prosper. Nevertheless, one cannot
kill a bullock with the same weapon that will slay
a caterpillar. The Board of Trade was not big
enough for the mischievous task entrusted to it by
Parliament. Lord Salisbury ' in his Conservative
days ' had said :
' . . . Parliament is a potent engine. ... Its enactments
almost always do something ; but . . . seldom . . . what the
originators of these enactments meant. The result, to use a
technical phrase, is the resultant of a composition of two
forces . . . the enacting force of Parliament and the evading
force of the individual.'
The Economist's comment upon this was :
' The truths here stated demand the attention of politicians
of all shades of opinion, and deserve to be written in letters
of gold upon the walls of every Legislature in the civilized
world.' So soon as the Board of Trade schedules under
the Act of 1888 were promulgated, railway com
panies (representing economically Lord Salisbury's
' evading force of the individual ') very naturally
said :
' Before we put more money into our business, we must
wait and see how this new enactment works. If the right to
fix our charges is to pass away from us, we must ascertain
what our new masters are willing to vouchsafe us in the
shape of remuneration for our services before we risk further
capital.' The answer to this, from the political astrologists,
was that ' the State ' should compel railway com
panies to continue their expenditure on improve-

BARGAIN WITH TITHE-OWNERS 313
ments, branch lines, etc., under threat that
shareholders' rights would be confiscated if they
refused. The anti-tithe agitation of 1886-87 was> in Wales,
an attenuated copy of the Irish No-Rent Movement ;
that indispensable element of racial and religious
antipathy which transforms the Welsher into the
martyr, being contributed by Nonconformist pastors
and their political dependents. In England the
agitation was mainly an effort among land-owners
and farmers to evade consequences of agricultural
depression, the real origin of which they and their
political leaders were pledged not to understand.
Or, putting it another way, English land-owners
harassed, penalized, impoverished by the Legislature,
in its anxiety to ' protect ' tenants, argued that,
Parliament having given tenants power to repudiate
contract obligations, surely land - owners might
reasonably repudiate their legal obligations to
tithe rent charge owners ? Lord Bramwell was
more than usually impartial and ' detached ' on this
question. He did not care about the Church of
England ; did not constantly write long letters to
his unoffending Bishop about nothing — the infallible
symptom of enthusiasm for the Anglican Obedience.
A very defective and loosely drafted Tithe Rent-
Charge Bill brought into the House of Lords in the
spring of 1883 was demolished by Lord Bramwell's
criticism there. In 1886 the subject cropped up
again. On October 15, 1886, he wrote to the Times :

314 A MEMOIR OF LORD BRAMWELL

' Tithe Rent-Charge.
' Before the Tithe Commutation Act, tithe was rendered for
some things in kind and for others by money payments. The
person liable was the occupier, the producer of what was tithed.
This mode of rendering and paying was bad : bad for the
payer, bad for the receiver — the tithe-owner — and bad for the
land-owner. For whatever is bad for the tenant is bad for the
landlord. So inconvenient was it, that there was commonly a
sum agreed on to be paid by the tenant to the tithe-owner.
But though the tenant paid in the first instance, the burden
was really borne by the landlord. For a farm tithe-free, or
subject only to a small modus for tithe, would let for as much
more rent than a farm liable to tithe as the tithe would
amount to.
' This state of things was put an end to by the Tithe Com
mutation Act. That abolished tithe in kind and substituted
for it a rent-charge. The amount of this was fixed in some
cases by agreement between land-owner and tithe-owner.
When they could not agree it was fixed by the Tithe Com
missioners. Like other rent-charges, the burden of it is on
the land-owner. It was fixed then for ever, for better for
worse. If it had been fixed at so much per acre, say 5s.
an acre, this would be too clear to be misunderstood. But it
was not so fixed. It was supposed that gold might rise or fall
in value, so that any fixed sum might be too much or too
little. But it was supposed that one year with another wheat,
barley, and oats would be of the same value, though their
prices might alter, and so the sum to be paid was fixed with
reference to the market prices from time to time of those articles.
' But that does not alter the case from what it would have
been had the rent-charge been fixed absolutely at so many
named shillings or pounds per acre, or farm, or field. It is a
mistake to talk of the land-owner's share and the tithe-owner's
share of the rent. The tithe-owner is entitled to his tithe,
though there is nothing left for the land-owner, just as much
as a man to whom the land-owner had granted a rent-charge
would be entitled to it, though nothing remained for rent.
' Not only has the land-owner no legal right to deduct any-

THE A UTO CRA TLC ' ST A TE' AGAIN 315
thing from the tithe-owner's rent-charge : he has no equitable
or moral right or claim to do so. As I have said, the arrange
ment was made much to the land-owner's benefit, for better
for worse for all time. If things had turned out differently, as,
for instance, if, though wheat, barley, and oats had fallen,
cattle and sheep had risen in price, the tithe-owner would have
had no claim to have a revision of the arrangement. And it
may be observed that the land-owner is no worse off than he
would be if tithe was still taken in kind. The nine cocks of
hay or shocks of wheat would be as little able to pay rent as
the whole crop is minus the tithe rent-charge.
' I think it important that this should be understood, and it
is clear from some letters in your paper that it is not. The
tithe-owner is entitled to be paid in full, the land-owner is only
entitled to what remains of the rent after paying tithe rent-
charge, when the landlord pays it ; or, when the tenant pays
it, to what rent the tenant in addition pays the landlord. If
the tithe-owner gives up any part of what he is entitled to, it is
a gift, a present to the land-owner.
' But, unhappily, there are cases where the land cannot be
used with profit, if it is to bear the tithe rent-charge. I am
afraid there are many thousand acres in this condition.
Suppose the rent of the land — that is, what would remain after
a fair return for capital and labour bestowed on it — is 4s. an
acre ; suppose the tithe is 5s. an acre. That land is not worth
occupying. ' That does not present a case for legislation, except to
validate reasonable bargains between land and tithe owner —
viz., that the tithe should be reduced either temporarily or
permanently. Legislation for this purpose would be necessary
when the tithe-owner has only a life or other less interest than
the fee-simple. Such bargains would be reasonable and for
the benefit of both parties. Something of the same sort might
be arranged as to rates. ' Your obedient servant,
' Bramwell.'
In October, 1886, Mr. James Howard, of Clap-
ham, Beds, advanced in the Times the argument,

316 A MEMOIR OF LORD BRAMWELL
a very remarkable one coming from such a judicially-
minded gentleman, that 'What "the State" had given
"the State" can take away.' This argument at once
ends all talk about vested interests as well as all
indefeasible claims either to civil and religious
freedom or to security of property. What people
less judicially-minded than Mr. Howard were say
ing and thinking at the time can be imagined.
Canon Blackley replied that ' the State ' had never
' given ' tithes, or equivalent charges on land, to
anybody — a good but almost irrelevant reply.
Private individuals, he pointed out, voluntarily
charged their private property with such payments.
On October 26 Mr. Howard intimated that Canon
Blackley's retort was a half-truth in the nature of a
quibble, since 'the State,' if it did not give tithes,
graciously consented to enforce payment of tithes.
Here one comes across the popular theory of ' the
State's ' dispensing power : one day it may, another
day not, enforce legal rights, protect property;
when it does the latter (as a favour), the freeman
ought, in gratitude, to submit to minor confiscations
of his goods— for the benefit of ' the State's ' pro
teges. The further argument that rent- charge -
owners would get better security, a better title, if
they consented to forego a portion of their legal
claim had also been used in 1881 to reconcile Irish
land-owners and tender-conscienced Liberals to the
Land Act of that year.
On October 23 Lord Bramwell wrote to the Times :
' Mr. Howard, in reference to my remark that the tithe rent-
charge was "fixed for ever, for better for worse," says that

AN OBVIOUS DUTY 317
he " believes that our Constitution knows nothing of irrevo
cable decrees ; that no Act of Parliament that ever passed
possesses the quality of endurance that distinguished the laws
of the Medes and Persians." He is quite right ; there is no
doubt that Parliament has the power to reduce the tithe rent-
charge by half or abolish it altogether. But what Mr. Howard
overlooks is that what Parliament did was to make, or ratify,
a bargain between the land-owner and tithe-owner — a bargain
that was meant to be permanent and for ever ; a bargain by
which the tithe-owner gave up the right to tithe in return for
a defined rent-charge, and the land-owner, in return, agreed to
pay that rent-charge. The dividend on consols is 3 per cent. ;
Parliament could make it 2. Would Mr. Howard think that
honest because it was possible ? If the tithe-owner wanted
his rent-charge raised, would he not be told that there was a
bargain ?
' Dr. Trevor says that there is an inconsistency between my
saying that the tithe-owner is entitled to be paid in full, but
that where there is not enough to do so it may be worth the
tithe-owner's while to take less than his due. There is no in
consistency. It may be worth his while to do so, as otherwise
he may get nothing. Take the case he puts — a rent-charge,
not tithe, with power of distress. Suppose a tenant could
afford a rent of ^"50 a year, and the rent-charge £b~o, no one
could take the land, and neither landlord nor rent-charger
would get anything ; but if the rent-charger would take £\o
a year, there would be £10 left for the land-owner — something
for both. The right of the owner of the tithe rent-charge is
to be paid in full, though the landlord may get nothing. It
may be worth the while of the owner of the tithe rent-charge
to take less when he cannot get more.'
And on February 1 5 of the following year :
' ... In your impressive leader of to - day you say :
" Nothing will induce the farmer to see that tithes are really
not a tax upon him, but a tax upon the landlord." I am afraid
that the landlord shares the farmer's opinion, for otherwise his
conduct cannot be accounted for.

318 A MEMOIR OF LORD BRAMWELL

< The landlord, as you show, is liable for the charge. He
appoints his tenant agent to pay it. The agent will not.
What is the duty of the landlord ? That which is the duty
of every man who owes a debt — to pay it ; if his appointed
agent will not, pay it himself. Some landlords have set the
good example of doing so. Is it desirable at the present time
to be raising such questions as this state of things gives rise
to ? It is the duty of the land-owner (and his interest) to pay,
or to see that his agent the tenant pays, the tithe-owner.'
On February 26, 1887, J. Laurie replied, as
quoted in Lord Bramwell's next letter, suggesting
also that ' the tithe is due neither from landlord nor
tenant, but from the land itself — a subtle idealiza
tion of the prosaic debtor and creditor relation. A
legal difficulty was also propounded : Since neither
landlord nor tenant could be sued for tithe, could
there be any question of a personal debt ? It was
not very easy to impale Lord Bramwell on legal
chevaux-de-frise. On March 3 he replied :
' I say that when a tenant will not pay the tithe rent-charge,
the landlord, as a matter of common honesty, should do so.
Your correspondent, J. Laurie, asks : " Should the landlord
also pay rates if in arrear ?" Certainly not. He does not owe
the rates ; he does owe tithe rent-charge. It is idle to make a
doubt about it ; the statute creating tithe rent charges him
with it. A tenant distrained on for rent-charge can make his
landlord indemnify him, unless he (the tenant) had agreed he
would pay, and has a like remedy if distrained on for arrears
owed by a former tenant. . . . Tithe rent-charge is not " due
from the land." Land cannot owe, has no pocket out of
which to pay debts. It is a mistake to suppose that there can
be no debt, unless an action lies against the debtor. . . .'
On August 12, 1887, replying to Lord Brabourne,
he wrote :

REPUDIATION ALL ROUND 319
' The Tithe Rent-Charge Bill.
'Sir, ' In your paper of Wednesday appeared a letter from
Lord Brabourne on the Tithe Rent-Charge Bill, containing
some matters that ought to be noticed.
' His lordship says that if the power of distress for tithe rent-
charge is taken away distress for rent will follow. Certainly
not. The tenant who pays rent knows that he gets his land in
return ; when he pays tithe he cannot see that he really pays
it for his landlord, and pays all the less rent in consequence.
He thinks he gets no money value in return, and, if a Dis
senter, is disgusted to believe, as he does, that he is support
ing a worship to which he objects.
' Lord Brabourne says that what is objected to is the
amount of the tithe. Again, certainly not. The tithe-payer
wants a reduction, because he wants and gets a reduction of
rent, and has not the sense to see that, while it is the interest
of his landlord to allow such reduction, the tithe-owner has no
such interest. But to the amount of the tithe rent-charge the
tenant does not otherwise object.
' Lord Brabourne next speaks of " the undue amount of the
charge upon land." To my mind this is unmeaning. Undue
amount ! What is the due amount ? One must begin at the
beginning. Formerly tithes were taken in kind. They were
a charge then on rent. If a farm was tithe-free, it let for all
the more rent. Render or payment of tithe in kind was in
convenient to all parties, and the Tithe Commutation Act was
passed, which substituted a rent-charge. By that Act a bar
gain was made between tithe and land owners by which a
money payment was arranged, which was to vary with the
prices of wheat, barley, and oats. This was a bargain made
for all time, for better for worse. If prices so altered as to
make it more burdensome for either party, so much the worse
for him. But in such case neither had reserved any right
against the other. To alter that bargain without consent of
both parties is to do wrong. If anything is done, it should be
to give the arrangement up altogether, and remit the tithe-
owner to his right to tithe in kind, when he would be much

320 A MEMOIR OF LORD BRAMWELL
better off than now. But I repeat it was a bargain for all
time. ' Lord Brabourne proceeds : The British farmer knows if he
takes a farm with £"ioo a year rent-charge he would have to
pay less rent if that charge did not exist. Is this a slip, and
should the word be " more," he paying it, or is it meant that
if the landlord pays the tithe the tenant would pay less rent if
tithe did not exist ? Again, certainly not. Do landlords let
tithe-free farms at a lower rent than farms liable to tithe, they
paying it ?
' Lord Brabourne . says that the Government Bill exposes
small occupiers to imprisonment if they do not pay their tithe
rent-charge. Yes, and large occupiers, too. I am surprised
Lord Brabourne should have said this. If judgment is got for
any debt, and the defendant can pay, but distinctly and con
tumaciously refuses to pay, not otherwise, he may be sent to
prison, and deservedly.
'Lord Brabourne finishes by saying that "land can no
longer bear the burden which it was able to bear when pro
tected by legislation," and he speaks of a revaluation of the
rent-charge on a "just basis." In plain English, he suggests
a departure from the bargain made fifty years ago, and that
tithe-owners should be fleeced for the benefit of land-owners.
' I trust the Government will persevere in their Bill, which
is a measure of peace and true conservatism, not using the
word in its party sense. ' Your obedient servant, ' B '
Lord Brabourne replied :
' The Tithe Rent-Charge Bill.
'. . . " B." thinks that to speak of "the undue amount of
the charge upon the land " is " unmeaning." He would think
differently if he owned land the tithe of which equalled or ex
ceeded the rent, or land which he could not let, but upon
which he had nevertheless to pay 8s. or gs. per acre tithe rent-
charge. . . . The Tithe Commutation Act was nothing more
nor less than the assertion by the State of its right to deal with
tithes as national property, at a time when the very existence

NATIONALIZATION OF TITHE 321
of that property had become imperilled by the discontent of
those from whom it was collected. That right exists equally
in 1887 as in 1836, and inasmuch as legislation, rightly or
wrongly, has greatly decreased the value of the land, that
which was a " due " amount to levy in the one year has become
an "undue" amount in the other. To say that any Act of
Parliament is to be deemed "a bargain made for all time"
appears to me to be taking an untenable position both as
regards the power of Parliament and the changes in human
affairs, which necessitate the same in legislative enact
ments. . . .'
Lord Bramwell wrote in August, 1887 :
' I said in my letter to you that imprisonment could not be
given for mere non-payment of tithe rent-charge ; that it could
only be given as in case of other judgment debts, viz., where
judgment had been recovered, and where the defendant had the
means of paying, but dishonestly and contumaciously refused
to do so. Lord Brabourne does not deny this, but allows him
self to repeat his incorrect and misleading statement.
' Lord Brabourne says that the Tithe Commutation Act was
nothing more nor less than the assertion by the State of its
right to deal with tithes as national property. Is it possible
he can believe this ? Does he believe that tithes, the property
of lay owners, were ever supposed to be national property ?
If so, he is wholly wrong. But clerical and lay tithes were
dealt with in the same way and on the same principles. If
clerical tithes are national property, let them be dealt with for
the benefit of the nation, not of the land-owner only. Lord
Brabourne seems to think that, if there are no charges on a
farm, it will be let on terms better for the lessee. Does he
suppose that a lessee asks for better terms from a land-owner
whose estate is not mortgaged, or on which there are no charges
for jointures or children ?
' Lord Brabourne says I have but a poor opinion of the
tenant farmers. I should have, and they would deserve, a
better opinion if they were not misled. ' Your obedient servant, 'B.'
21

322 A MEMOIR OF LORD BRAMWELL

The general attack on ' capitalism,' stimulated by
the Radical triumph of 1880, included demands that
money should be taken by 'the State' from share
holders in London water companies held to be too
rich, too successful. Water, a slippery element, is
apt to upset people's political economy and weaken
their sense of justice. Sometimes water seems to
weigh nothing at all — does not hurt if it falls on
people. To pay for the carrying of heavy things
like coal, sacks of flour, or paving-stones, which always
hurt you if they fall on you, seems obviously just ;
not so the proposition that London's water-supply
needs carrying to the tops of houses, and at great
expense. In many country places water costs
nothing. Besides, while it never rains coal, flour,
or paving-stones, a shower of rain now and then
does supply much water gratuitously, which compli
cates the problem. Finally, Parliament, in early days,
had made conditions for the then struggling water
companies, which ultimately proved to be favourable
to the latter. In 1826 the Grand Junction Com
pany, on the motion of Cropley, sixth Earl of
Shaftesbury, Chairman of Committees, got powers
inserted in a Bill to charge a certain percentage
on the annual value of each house supplied. This
power, although for years seldom exercised, was
embodied, not without protest from Parliamentary
Committees, in the Water Works Clauses Act of
1847, in the Act of 1852, and virtually in all private
Acts promoted by London water companies. Early
in 1885 Lord Camperdown introduced a Water
Works Clauses Act Amendment Bill in the Lords

SHAREHOLDERS ' THE ENEMY' 323
(better known as Torrens's Act). Government, rather
disingenuously, treated it as a public Bill, and after
the most strenuous opposition from Lord Bramwell
in the House of Lords (who called it a ' most unjust
Bill,' declared that he never held a share in a water
company, etc.) it became law in July, 1885.
On May 1 he wrote to the Times :
' The Water Question.
' The Bill now in the Commons entitled "A Bill to declare and
explain the 68th section of the Water Works Clauses Act,
1847," is quite wrong. It can only have been brought in by
such gentlemen as those whose names are on the back from a
misunderstanding of the judgment of the House of Lords in
Dobbs's case. I am told that that misunderstanding exists,
and I hope you will help me to correct it. By the Water
Works Clauses Consolidation Act of 1847 "the rates shall be
payable according to the annual value." That is the real,
actual annual value. By the Bill in question, the rates are to
be payable on the " net annual value as settled by the local
authorities." It is obvious that the two things are different,
and certain that the latter will always be less than the former.
The only justification for such a provision could be that it
would preclude disputes as to value, and that it is to be
assumed that local authorities will do their duty honestly, and
" settle the net annual value " truly. But the local authorities
are persons interested in making the water-rates as low as pos
sible, and therefore, if this Bill becomes law, will be interested
in " settling the net annual value " as low as possible ; and
though we ought to, and must, trust persons in authority, it
has not been the practice hitherto to leave it to A to settle how
much he shall pay to B. Besides, the " annual value," as
settled from time to time by the local authority, is always
below the true annual value. This is in order to preclude
complaints and appeals. Therefore the annual value as so
settled is always different from, and less than, the real, actual
annual value. On this (the larger amount) it was held in
Dobbs's case the company was entitled to charge. The differ-
21  2

324 A MEMOIR OF LORD BRAMWELL
ence between it and the smaller amount the Bill proposes to
confiscate, and without appeal.
' It is absurd that A, rated to the poor rate, might appeal
against the rating of B as too low, while the water company
could not, though the whole parish should be underrated.
Further, there are some tenements, as public buildings, assize
courts, and the like, which are not rateable to the poor-rate,
which yet must pay for their water. Still further, the local
rate may be on a tenement, only a part of which is supplied
with water, on the annual value of which part only it would be
chargeable — e.g., a railway of several miles is rated to local
rates, while the station only is supplied with water. The Bill
leaves these cases unprovided for. As to the recital that ques
tions have arisen " whether annual value may not mean other
than the ' net annual value ' as settled from time to time by
the local authority," I am not aware of any such question
having arisen among persons competent to form an opinion on
the matter. The rate is payable on the true, real, actual net
value ; " value " is net value, so settled in Dobbs's case. The
Bill is an invasion of property, a confiscation of water com
panies' rights ; an enactment that they shall charge on a value
to be fixed instead of on the true value — a value to be fixed by
those who will have to pay on it ; a value always fixed at less
than the true value. ' Your obedient servant, 'B.'
And a month later, June i, 1885 :
' By inserting the letter of " W." you show you think that
the question he so courteously puts to me may properly be put,
and therefore should be answered. I answer it willingly ; all
the more so that it enables me to correct some misapprehen
sions or misstatements. But I do so with reserve. I could
not speak with any certainty unless I knew the rights of the
water company and their reasons for what they have done.
But assuming that your correspondent is right, and that the
company can charge 4 per cent, only on houses not exceeding
^200 annual value, and on houses over that value can charge
only 3 per cent., and assuming there is nothing in their Act or
Acts or otherwise to qualify this, then if his house is over the

' TORRENS'S ACT' 325'
annual value of £"200, the company can only charge him at
the rate of 3 per cent. I say "is" over the annual value,
because the question is not what he is rated at as the annual
value, but what it " is." The company cannot fix a value
different from the true value either below or above it, nor can
the rating authorities as yet do so as against the water com
pany. " B." never said anything to the contrary, but agrees
with your correspondent that it would be a grievous wrong
that in fixing the annual value the water companies should use
"a law unto themselves," as grievous as it would be that
behind their backs, without their being heard on the matter,
a value should be fixed against them by those who have to
pay them on it. . . .'
Beginning February 14, 1891, four carefully pre
pared and instructive papers on ' London Water-
Supply ' appeared in the Economist. As to future
legislation, the writer laid down the principle that
' so long as the companies exist and fulfil their
statutory duties, Parliament cannot equitably alter
conditions on the faith of which they have expended
their capital ' (what Edmund Burke says, ' Reflexions,'
sixth edition, pp. 157, 159; what Lord Bramwell
had said when arguing with the Economist about
the anti-railway agitation, 1886-91). It was asked
whether Torrens's Act of 1885 did or did not
merely embody in a statute the majority vote of
the Law Lords in Dobbs's case ; in other words,
had the water companies for years made illegal
charges ? The Economist rather thought they had.
On February 21 Lord Bramwell wrote to the
Economist :
' With all respect, you are wrong about Dobbs's case and
Torrens's Act. In Dobbs's case the water company tried to
charge on what they called the " gross " value — some value

326 A MEMOIR OF LORD BRAMWELL
over the net value. The House of Lords decided that the
charge must be on the "value," i.e., on the net value, that
being the value. Torrens's Act limited the right to charge on
the rated value or amount — an amount practically five-sixths
only of "the value." It was a downright confiscation, and
therefore a precedent for another. It caused a loss to the
Vauxhall Company of ^"9,000 a year.
' Your obedient servant,
' Bramwell.'
On February 27 Mr. A. Dobbs wrote from West-
bourne Park, firmly but temperately pointing out
that Lord Bramwell was wrong. Early in 1885
Lord Bramwell had written privately, stating that
he could not give Mr. Dobbs the pleasure of a con
troversy in print, and, on March 7, 1891, he wrote :
' I ought to know something about water-rates. I heard
Dobbs's case, and was asked by the other peers to prepare
an opinion, which I did. I opposed Torrens's Bill in the
House. Nevertheless, I may be wrong when I speak on the
subject. I was quite right, however, in the letter I wrote to
you. The water company tried to charge Mr. Dobbs — who
ought to be much obliged to me for giving him such an oppor
tunity of recounting his exploits — they sought to charge him,
I say, on what they called the gross value of his house. We
held that that was wrong — that the charge should be on the
value, the net value.
' Torrens's Bill said that the charge should be on the amount
at which the house is rated. Now, there is a power to rate at
five-sixths of the real value, and this is always done ; so that
the water companies lost a sixth of their possible charges.
Your well-informed contributor on water-supply in your last
number showed his knowledge of this. He mentioned it as
accounting for the water company's receipts the year after
Torrens's Act came into operation. ' Your obedient servant,
' Bramwell.'

' BRIEFED B Y THE STE WARDS ' 327
On March 14 Mr. A. Dobbs wrote from Grand
Avenue, Brighton, rebuking Lord Bramwell, with
the aid of sarcasm. He added scornfully that not
even the wisest men in the land could understand
the meaning of the last sentence, beginning ' He
mentioned it,' in Lord Bramwell's letter of the 7th.
Thus Mr. Dobbs reminds one that newspaper
readers really do like ' padding ' in letters — miss it
when it is not there. Lord Bramwell suppressed
all superfluous words, but never omitted essential
words. Many readers do not like condensed nutri
ment ; they prefer something ' filling,' which will
distend their minds.
One curious by-product of the war against land
lordism, after 1880, was the promotion of various
Copyhold Enfranchisement Bills. Copyhold tenure
involves some petty inconveniences — in respect to
search for and working of minerals, etc. Most of
the Bills proposed would have put copyholders to
greater trouble and expense than enfranchisement
was worth ; this was Lord Bramwell's main reason
for objecting in the House of Lords to Lord Hob-
house's Bill when discussed there in 1885 and 1886.
Mr. Waugh alleged as an explanation of Lord
Bramwell's opposition, that the latter was ' avowedly
briefed by the stewards,' and 'his brief instructing
him to get rid of the Bill, his nisi prius proclivities
suggested the means.' This statement Lord Bram
well retorted, in a Times letter, ' is silly and imperti
nent, which does not matter ;' but ' it is also false,
which does matter ;' adding, ' I use the word
deliberately.' The very point which Lord Bram-

328 A MEMOIR OF LORD BRAMWELL
well had made in the House was that, while lord
and copyholder showed by their action they were
indifferent to enfranchisement, the race of stewards
(of whom Mr. Waugh was one) had a decided
personal interest in pushing Lord Hobhouse's Bill
forward, seeing that stewards would realize much
profit from enforced conversion. 'There was,' his
lordship said, ' a third person interested, and that
was the steward, and certainly the Bill would be
a boon to the present generation of stewards; and
when his noble friend said that the Incorporated
Law Society approved of the Bill, he could well
understand that, seeing that there was a great
number of stewards in the society.' ' No one can
deny,' he said, in the course of the debate, ' that
it is desirable to get rid of copyhold tenure.' But
the principle of freedom comes in in another form.
Both or either of the parties concerned could have
obtained enfranchisement, and many of them did
use the power which the law gives them for that
purpose; but many others, 'avowedly,' as Mr.
Waugh would have said, don't think the advantages
worth the expense.
On March 2, 1886, Mr. (now Sir) A. Arnold wrote
approving of Lord Hobhouse's Bill as an instalment,
adding that Lord Bramwell's proposal, to leave the
matter to the parties concerned, ignored the rights
and interests of the public. When his (Mr. Arnold's)
friends got into power, they would introduce a
' severe measure,' making all copyholders free
holders dun coup, etc.
Whereupon Lord Bramwell wrote to the Times :

LIMITED LIABILLTY 329
' Mr. Arthur Arnold says that " to leave it to lord and tenant
to decide whether copyhold tenure should be converted into
freehold ignores the rights and interests of the public."
' Will he tell us what rights and interests of the public are
ignored ? Doubtless in some cases the total value of the
interests of lord and tenant would be augmented by enfran
chisement, but in many cases the expense makes enfranchise
ment no gain to the parties. Surely, whether it would be or
not, the parties are best judges.
' Does Mr. Arnold know that Lord Hobhouse's Bill, after
putting them to some trouble and expense, leaves it for them
to decide ?
' Mr. Arnold suggests that after a certain time, thirty or
perhaps ten years, all copyholds shall become freeholds. How ?
By the lord's rights being extinguished, or the copyholder's.
That would be to rob one or the other. The copyholder would
be most plundered, but does that matter ? It is only a ques
tion of quantum. Mr. Arnold says it would be a "severe"
measure. Very, and something else.'
On May 23, 1888, Lord Bramwell discoursed to the
Institute of Bankers on limited liability ; gave an ac
count of the curiosities of partnership law as applied
to companies existing in the ' old deed of settlement,'
and winding up in Chancery, days. ' One strange
notion held by the Judges was, that debts were paid
out of profits ; therefore all persons who took the
profits of trade must share in paying the firm's
creditors. Debts are really paid, not out of profits,
but out of the firm's general means. Common Law
always recognized the principles of limited liability.
Thus, corporations themselves, not persons compos
ing them, were held liable for corporation debts.
Railway companies were from the first limited
liability concerns, as were life and fire insurance
companies, the reason in the latter case being that

330 A MEMOLR OF LORD BRAMWELL
policies clearly set forth that companies' funds — not
shareholders — were liable. While the policy itself
made this plain to insurance companies' customers
and creditors, liability in respect to ordinary trading
companies was a matter of great doubt.'
Popular belief is that unlimited liability — so cruel
an obligation in the case of the Western Bank in
November, 1857, and of the Glasgow Bank in
October, 1878 — was part of the burthen of the in
flexible Common Law, or ' original law,' of the land.
Lord Bramwell recalled the fact that unlimited
liability was a modern invention of shareholders
themselves, who voluntarily extended their liability
in order to strengthen the firm's credit. He gave
an amusing account of the proceedings of the
Law of Partnership Commission of 1853 (P- 2I)-
Two of its members — Sir Cresswell Cresswell and
the Irish Master of the Rolls — were 'Tories of a
very obsolete character, who thought any change
wrong.' The other members, Sir Thomas Bazley,
Mr. Slater, Mr. Kirkman Hodgson, of Baring's, and
Lord Curriehill, ' thought there was a great deal to
be said on both sides.' Mr. Anderson, an English
Q.C. and Scottish advocate, backed up Mr. Bram
well's view, which all through was that limitation
of liability should be permissive ; this reconciled
Mr. Bramwell to the Parliamentary ' interference '
with business relations involved. ... 'A man is
none the worse for having an option, although he
may sometimes make a bad use of it.' . . . One of
the anxieties which troubled certain members was,
What sort of business limited liability companies

' CA VEA T EMPTOR ' 331
were likely to be engaged in ? (Just the sort of
thing Royal Commissioners muse over.) Mr.
Bramwell replied to them : ' I don't know ; and it is
not necessary for us to consider.' Some evidence
tendered to the Commission was characteristic. Lord
Overstone, for example, thought ' it would be better
if capitalists were not interfered with by people
clubbing together as bankers to compete with them.'
Lord Bramwell did not claim that he was author of
the Limited Liability Act (' Lord Sherbrooke, then
Mr. Robert Lowe, one of the ablest men the country
ever produced,' had a large share in it) but that he
himself suggested the addition of the now classic
word ' limited.' No doubt the claim is good, for to
insist on letting buyer and seller, debtor and creditor,
know exactly how matters stood was always his
way. At eighty years of age he might well have lost
some of his old grip of these questions. So we find
Saul among the prophets of ' State supervision ' in
business matters, and gently rebuked by the Bankers'
Magazine. The fact is, Lord Bramwell's pet piece
of constructive legislation — the Act of 1862 — while
sweeping away monstrous anomalies and hindrances
to trade expansion, not only departed too far from
his own sound maxim, Caveat emptor, but set an
example, mischievously copied by the new school of
jurists in later years. A penalty had to be paid.*
* The Bankers' Magazine, June, 1888, criticizing Lord Bram
well's paper, puts very clearly what the most experienced
companies' solicitors and secretaries in the city of London say
privately in this matter, influenced probably by their experience

332 A MEMOIR OF LORD BRAMWELL
that, until a company goes into liquidation, not one investor in
a thousand ever studies the statutory ' Agreement for Sale and
Purchase ' (a far more important document than either the
' Articles' or ' Memorandum of Association '), and always open
to the inspection of the public :
' . . . The sheet-anchor of the careful investor is always the
Memorandum of Association. He need not buy a pig in a
poke, for he can always turn to the Memorandum of Associa
tion, and satisfy himself as to the nature of the company whose
shares he may be disposed to buy. ... It is in limited
liability companies where the mischief has been. . . . The
general investing public have been nursed into a kind of false
security under the Acts. . . . They have believed that the
law watched over them, that especially the law was down
upon fraudulent promoters — that, in short, the buyers of shares
were protected by Act of Parliament. ... It may be asked
whether the loss and suffering produced by the too great con
fidence placed in the Limited Liability Acts have not been as
serious, from first to last, as the previous misfortunes brought
upon the community by the absence of limitation of the liability
of unsuspecting investors.
' On the Memorandum of Association and on limitation of
liability under the Act of 1862 . . . advocates of the Act relied
mainly for the protection of the public. . . . But " promoters "
have wriggled round these buttresses of honesty, straight
forwardness, and legality in the matter of the formation of
public companies, and it may be doubted whether simple pro
visions and other impediments to the frauds of unscrupulous
promoters are likely to be a whit more successful. . . .
Nothing is more astounding . . . than the way in which the
public will sometimes entrust hundreds and thousands of
pounds to men whose names are printed as directors on a
prospectus . . . simply because these Companies' Acts are
supposed to give protection to shareholders on the one hand,
and to relieve them of the duty of controlling directors on the
other.'

[ 333

CHAPTER X.
THE ARGUMENT FROM COMMON LAW.
Revolt among trade unionists against contract relation
between master and servant — Employers' Liability Bill
of 1878 — Debate and Times correspondence thereon —
Lord Bramwell's keen interest in the subject — His exposi
tions of Common Law applicable thereto — Letters to Times
and Economist, 1878-80 — Pamphlet — Act of latter year —
' Hares and Rabbits ' Bill, 1880 — Lord Bramwell's protest
against further repudiation of contract — ' Paternal ' legis
lation and national character — Complete fusion in his
mind of English jurisprudence and Whig principles — The
colours he fought under — The law he reverenced.
Discussion of Employers' Liability Bills brought out
very plainly how, in respect to contract, the new
jurisprudence had parted company with the old.
' The matter is of the greatest importance,' Lord
Bramwell wrote, Times, April, 1878, and September,
1880, taking extraordinary, and at first sight inex
plicable, interest in it. He never protested half so
strongly against Irish Land Acts, which did inflict,
not theoretical wrong, but palpable ruin, upon many
innocent persons. The latter Acts were, however,
simply confiscation by statute of one kind of pro
perty. It is quite possible for supreme authority,

334 A MEMOIR OF LORD BRAMWELL
under stress of ignorance, prejudice, terror, blind
hate, to plunder or persecute an isolated class — as
Anabaptists, Roman Catholics, Quakers, Dissenters,
in this country, heretics in Spain, Stundists and
Jews in Russia, Armenians and Christians in Turkey
— while still conceding a large average measure of
personal freedom. Under local fueros in medieval
Spain, liberty of the subject was, and in modern
Turkey is, far less interfered with in small matters
than in the colony of New Zealand to-day. The
indirect but far-reaching consequences of repudiation
of contract (i.e., of the very principle of liberty)
seems to have alarmed Lord Bramwell in the Em
ployers' Liability Bill.
In April, 1878, Mr. A. Macdonald introduced, as a
private measure, an Employers' Liability Bill, which
was talked out, Ministers promising in both Houses
to deal with the matter later, as recommended by the
Committee of 1876-77. Mr. Robert Lowe, who had
re-enlisted in the Radical Pyrrhic phalanx, because,
perhaps, of his dislike to Lord Beaconsfield's Eastern
policy, then fiercely questioned, in a speech (which
amply justified that dread of the demagogic fallacy
he had himself expressed in 1866) charged Lord
Abinger with certainly creating, in 1837, in Priestley's
case (3 M. and W. 6), a special and novel dis
ability for working men ; English Judges, with evil
intent, had ' supposed ' or ' invented ' contracts
' which never existed,' etc.
On April 1 3 Lord Shand replied in the Times, point
ing out among other things that the legal maxim,
Quifacitper alium, etc., does not apply in this matter.

'IMPLIED' CONTRACTS 335
The Times of same date remarked that Lord Abinger
had made it clear that, although claims against a
master arising out of a fellow-servant's negligence
had not arisen before 1837, they might have, and
would never have been good at Common Law, while
Chief Baron Pollock had also said substantially the
same thing. On April 19 Mr. Robert Lowe, in a
long letter, argued that the decision in Priestley v.
Fowler did not alone originate the grievance of which
trade union leaders complained. The judgment in
Hutchinson v. York, etc., Railway (5 Exch. 343) in
flicted a worse wrong, because the Judge then laid
down that, in the absence of any affirmative contract
or agreement, giving a servant claim for damage
caused by negligence of a fellow-servant, a negative
agreement, positively barring such claim, must be
implied.* English Judges, he said, ' evolved out of
their own minds,' or created, ' false contracts . . .
notoriously false.' He wound up with this dema
gogic fling at English Judges : ' The whole matter
was a controversy between rich and poor ; the
" sword of Brennus " being thrown into the heavier
scale,' etc. Next day, Sir George Bowyer, an
erudite Roman Catholic M.P. and master of mis
applied jurisprudence, while agreeing with Lord
Bramwell on the whole, quoted Petrus Fabian,
Ulpian, and other doctors, to prove that such wrongs
as Mr. Lowe alleged would have been differently
dealt with by interpreters of Civil and Canon Law.
Which was quite true. Thus, in an interesting way
British trade unionism, then, quite unconsciously,
* See p. 207.

336 A MEMOIR OF LORD BRAMWELL
reverting to medieval Socialism, found archaeological
support and assistance.
On April 24, 1878, Lord Bramwell wrote to the
Times, signing ' G B.' :
' . . . The proposed extension of a master's liability in case
the negligence of one servant causes damage to another servant
is uncalled for and mischievous. When it is proposed to alter
a law, it matters little how it came into existence. The ques
tion is whether the alteration is expedient. Mr. Lowe finds
fault with the origin of the present law. He, however, must
know very well that many cases are rightly decided, and a
principle established, on doubtful reasoning. The cases he
refers to, if stated at length, would have a very different aspect
to that which he gives them ; would justify the negative opinion
that masters and servants have not "contracted" that the
master shall be liable for a fellow-servant's negligence. . . .
The question is of the greatest importance.
' The fundamental error of those who support the proposed
change is to assume that, by some general law or " natural
right," everybody has a remedy against a master for the negli
gence of a servant acting in the master's employment ; that in
the nature of things masters are to make good damage done
by their servants, and that therefore the law which makes
masters not liable for a fellow-servant's negligence is an unjust
exception to the general law.
' There is no such general law.
' A master is liable for the negligence of his servant in two
classes of cases : (1) Where there is no contract relation
between the person injured and the master ; (2) where there is
such contract relation.
' In the former class are included such cases as one of the
public being injured by the negligent driving of the master's
coachman. How this rule originated is not material : some
reason or justification is that it has a tendency to ensure care
in the selection of servants to whom the means of doing
possible mischief are entrusted. If it be said, " Then, make
the master liable only when he has been careless in the choice

LIABILITY AT COMMON LAW 337
of a coachman," the injured person might say, " I cannot
prove that he was ; I had no choice in the matter. Unless I
give up my right to use the streets, I am exposed to the chance
of his coachman being negligent. Let us judge by results, and
ensure his being careful by making him liable." Whether
that is right I do not say, but it is the reason.
' Injuries to servants by fellow-servants do not, however,
come under this head. The servant injured is not merely one
of the public ; a relation or contract has been established
between him and his master. So the case is within the
second class. It, again, must be subdivided. Whenever a
man undertakes anything, it is understood (unless stipulated to
the contrary) that it shall be done with due care and skill. If
he does it himself, and fails in care or skill — to the damage of
the person he has contracted with — he is liable. If he gets
someone to do it for him, and that person (whether servant or
not) fails in care or skill, the original contractor is — and in all
reason — liable. If A contracts to convey me in a carriage, and
I am hurt by his negligence, by that of his servant, or of
another coach proprietor employed by A to carry me, A is
liable. If I take a ticket from Dover to Liverpool, and am
injured by negligence at the Liverpool station (belonging to
another line of railway which completes my journey), the
Dover Railway Company would be liable to me. The principle
of this law is that no man can get rid of his liability by deputing
to another, servant or otherwise, the duty which he has under
taken. ' These are the only cases I know where the master is liable
for his servant's negligence. The case of a servant injured by
a fellow-servant is not within this (second) class. The master
has not undertaken to him to do anything with care and skill
(like carrying him, shoeing his horse, conducting his lawsuit,
and so forth). Yet there is a relation between master and
servant, created by mutual consent, and it is not one of the
terms of that relation that the master should be liable for
damage occasioned by a fellow- servant. It is proposed to
alter this, making the master liable unless the servant, as it is
called, "contracts himself out" of it. I believe he will be
allowed to do that. 22

338 A MEMOIR OF LORD BRAMWELL
' Why is the master to be liable ? I believe the burthen of
proof is on those who would alter the law. Why should A,
who has done no wrong, who has been careful and just, make
good to B damage done by C ? The reason given in the case
of claims by " one of the public " does not apply. It is open
to any servant to enter the service and work with the fellow-
servant or not, as he pleases. He can quit the service; has
more knowledge than the master of his fellow-servant's mode
of doing work ; can best guard against it if wrong. Why in
the name of all fairness and reason should the master be
liable ? In my judgment, a great deal more could be said for
making servants liable for damage done to a master's property
by the negligence of fellow-servants. Any one with experi
ence knows the recklessness, not specially of workmen, but of
undisciplined minds. I do not suppose that a man will risk
life or limb because his widow or he will have a remedy ; but
I think it is well to give him as little encouragement that way
as possible. ... I repeat my question : Why should the
master be liable when he has done no wrong ? The only
answer is that he can pay, while the fellow-servant cannot.
This is a parry to the " sword of Brennus." Fie, Mr.
Lowe !*
' If a man is a guest at a friend's house, the master is not
liable if his servant's negligence damages the guest. The
guest is something more than " one of the public " ; there is a
relation between him and his host ; but that the host should
be liable for his servant's negligence is no part of that re
lation. . . .
* On May 14, 1880, Mr. Gladstone (born 1809) having
come into office, Mr. Robert Lowe (born 181 1) wrote to Lord
Bramwell :
' . . . Many thanks for your kind congratulations. There
is no one whose opinion I value more. The worst of it is
there is nothing to be congratulated about. Gladstone told
me I was too old for a fresh start. I could not well retire to
the fourth bench, nor resign my seat, having just been elected,.
so here I am. . . .'

ALCLATUS AND MENOCHLUS 339
' G. B.' then pleads for 'that liberty of contract
which is all-important,' and adds that instead of the
then existing law being, as an eminent authority
told the Parliamentary Committee of 1876-77, 'a
bad exception to a bad rule,' it formed ' no exception
to any rule.'
The main points in dispute were somewhat
technical, and at least twenty minutes' thought was
needed to comprehend them. On the 26th Sir
George Bowyer again wrote. Apparently he had
been converted from his own to Mr. Lowe's view of
the 19th by Lord Bramwell's reply to Mr. Lowe
on the 24th, and quoted Alciatus and Menochius
to prove that English Judges generally were less
trustworthy in regard to the rights of masters and
servants than those ancients.
On April 27 ' F.' wrote in measured legal phrase
ology, instancing the maxim Qui facit, etc., asserting
that Lord Bramwell's doctrines were 'at variance with
clear and undoubted law,' and were now ' discarded
as downrio-ht absurdities ' ; referred to the law of
libel which made masters (publishers or proprietors)
liable for the negligence of servants (contributors
and compositors), and charged Lord Bramwell with
saying that ' a man is only liable for his own acts.'
To ' F.,' ' G. B.' replied in the Times at once :
' Qui facit per alium facit per se is good law and good sense,
but it has absolutely nothing to do with the question of a
master's liability for the misconduct of his servant. That
liability is beside and in addition to that established by the
rule Qui facit, etc. If A procures B to murder C, A is
guilty of murder, whether B is his servant or not. If A
22 — 2

340 A MEMOIR OF LORD BRAMWELL
procures B to build a house in such a place and of such a
plan that it must and does when built obstruct the light and
air to which C is entitled, A is liable, whether B is his servant
or a master builder. If A tells B to drive as fast as he can,
no matter what mischief he does, and B drives recklessly and
injures C, A is liable, whether B is his servant or a cabman
hired on the stand. On the other hand, if A tells B to stop
trespassers in search of game, and B with an excess of zeal
uses unjustifiable force, A would not be liable if B was a
policeman, but would be, according to recent cases, if B was
his servant. If A employs B to build a house, and the founda
tions might be dug so as not to injure C, but are wrongfully
dug so that they do so, A is not liable if B is a master builder,
is liable if B is A's servant. If A tells B to drive him to X,
and B negligently drives and injures C, A is not liable if B is
an ordinary cabman, is liable if B is A's servant. The reasons
for these differences are obvious. In the first three cases I
have put, A has caused or procured the injurious act, he has
done it by another. In the last three cases he has not caused
or procured the wrongful act, he has not done it by another.
It is the misconduct of the other that has done it, and A is not
liable, unless that other is his servant ; then he is — not because
he has done the act per alium — but because that other is his
servant, acting within the scope of his authority. The matter
may be made obvious thus : A employs B to pull down a wall.
If the wall belongs to C, A is liable, whether B is his servant
or not. If B in pulling the wall down negligently drops a
brick on D and hurts him, A is liable to D if B is A's servant ;
but if B is not his servant — if, for instance, instead of wages
he has agreed to do the job for £$, so that he is not subject to
A's orders as to how it shall be done — A is not liable. It is
absurd to say that the maxim applies when the wrongful act is
in direct opposition to the master's orders. " Drive carefully,"
is the order. The man drives carelessly. Then, by the
maxim, the master drives carelessly {facit per se), because
the servant {alius) did ! The liability of a printer for a libel
depends on other considerations. He carries on a trade which
may involve the publication of a libel ; he must take care it

'CLEAR AND UNDOUBTED LAW' 341
does not. I do not say this is a good reason, but it is the
reason. It is no longer law in all cases. The principle is the
same as that which makes a man liable for a nuisance who
carries on a trade so as to be a nuisance, though he has not
been near the place for years, nor knows of it. It is not a
liability for the act of a servant. He would be equally liable
if his partners printed the libel or caused the nuisance. Lord
Abinger may have made many "irrelevant observations " ; but
allowance should be made for him and other busy persons who
have not had leisure to study so as to lay down " clear and
undoubted law," but remain ignorant of " fundamental prin
ciples, landmarks, and cardinal principles."
' It is no fiction to say that master and servant do not agree
that the master shall be liable for the misconduct of a fellow-
servant. It is an actual truth. Whenever two people come to an
agreement, there is negatively an agreement that neither is bound to
anything but what is agreed. In order not to be misunderstood,
let me say at once that usual terms are implied and bind as
much as if expressed. If I order a coat of a tailor, and he
accepts the order, the cloth must be fair and the fit must be
fair, and I must pay a fair price, if none was named, and ready
money, though none of these things may have been expressed
between us. But negatively we agree there are no other
terms, whether we express these or not. We do not agree
that I shall order a waistcoat of him, nor that he shall have
his boots of me. It is manifest that the duty of a master to a
servant and the right of a servant against his master depend
on agreement, or, if the expression is preferred, agreement and
non-agreement. Suppose a servant was hurt in his employ
ment by no fault of anyone — e.g., owing to a defective casting
which neither the maker nor anyone else can guard against.
Suppose the workman made a claim on the master for compen
sation : the master would say, " I did not agree to compensate
you in such case." But as two are required to an agreement,
he should say, ' ' We did not agree that you should be compen
sated in such case." That is what he says now in the case of
a claim for compensation for injury by the negligence of a
fellow workman.

342 A MEMOIR OF LORD BRAMWELL
' That the question is, what is the agreement between the
master and servant, is manifest from this, that the servant
might bargain — and he and his master agree — for compensa
tion being paid to him for damage caused by a fellow-servant's
negligence. He would then be entitled to it by the agreement.
He is not entitled now because there is no such agreement.
And whether there is no such agreement, because there is no
agreement on the subject or an agreement to the contrary, is a
matter of indifference. But, as I said before, the question is,
not whether this or that maxim applies, or whether the matter
has been well reasoned. " Qui facit per alium facit per se " is
entitled to all respect, but we must not have a superstitious
reverence for it ; and if in some way Judges and lawyers have
blundered out of it into something better, let us be thankful and
leave the matter where it is.
' I never said that " the general rule of the law of England
is that the master is liable only for his own acts," nor anything
like it, nor that could be mistaken for it.
'G. B.'
In February, 1880, Lord Cairns, Chancellor, in
troduced an Employers' Liability Bill, which was
referred to a Select Committee. The Gladstone
Government, which came into office April, 1880, lost
no time in dealing with the subject. The working
class, believed to have voted mainly Liberal in
March, was clearly entitled to the first-fruits of
victory. On no question of the day were official
and ostensible leaders of trade unionism more
unanimous and persistent, Mr. A. Macdonald, Mr.
Broadhurst, and other leaders having for years pro
tested against ' the infamous " doctrine of common
employment," ' supposed to have been invented in
1837 in Priestley's case.* Since trade union
* In the House of Lords, July, 1897, Lord Salisbury spoke
of the " law " of common employment,' and there was a queer

' POSITIVELY UNMEANLNG' 343

leaders and their political dependents never managed
to understand what the Common Law applicable to
the matter really is, their protest has been more
than usually sincere.
August 28, 1880, Lord Bramwell wrote to the
Economist :
' Common Employment.
'Sir,
' In your last number is the following : " There can be
no doubt that the doctrine of common employment has been
pushed to an extreme against the workmen, and that they are
entitled to demand that the rule that the principal is liable for
the acts of his properly constituted agents, which obtains in
other departments of business, shall be made to apply also to
the relations between masters and men."
' Permit me with great respect to say this is wrong. I know
no other word for it. There is no such thing as a " doctrine of
common employment." I know the phrase is used by lawyers who
ought to know better, but it is positively unmeaning. . . . The reason
why the matter to which I call your attention is important
is, that at present the workman thinks, as you say, " that the
doctrine of common employment has been pushed to an ex
treme against him " — that some injustice is done him. As
long as he thinks so he is bound to struggle against it, and has
my entire sympathy. My wish is to show . . . that the notion
is wrong. . . . viz., a notion that there is a doctrine of common
employment which is unjust to the workman. One word more. . . .
Why should a master be liable for negligence by a servant
injuring a fellow servant, which he, the master, could not
possibly prevent ? Why, if the miner, in order to see more
debate on the subject of this myth in the Commons, March 9,
1898. There is, of course no such ' law.' Common employ
ment is a fact rather than a ' doctrine.' The only effectual
way to ' abolish ' it would be to enact that no employer should
ever engage more than one man.

344 A MEMOIR OF LORD BRAMWELL
plainly, opens his lamp and causes an explosion, should the
master be liable ? Why, if liable in such a case, should he
not be liable if the explosion was wilfully caused ? . . .
' G. Bramwell.'
In 1880 the prestige of trade unionism was
great. It was supra-political, that is to say, trade
unionists were not completely enfranchised ; when
they were they might go anywhere and do any
thing. Evidence that their annual Congresses were
manipulated for party purposes was not then clear,
while the policy embodied in such resolutions as
that about the nationalization of Cosmos, passed
at the Norwich Congress in 1894, was still in
embryo. Demand for an Employers' Liability Bill
in 1880 was not so much irresistible as unresisted.
Sentiment had a great deal to do with the matter.
Barring the Irish horror, England was a pleasant
abode for politicians at the time. Mr. Gladstone
couldn't live for ever. Prosperous and well-fed
M.P.'s did not like to think that poor men, toiling
all day long, might break a limb or get smashed
and have no remedy. Driving down from his club
to the House, the M.P. passed these men going
home from work, tired and begrimed ; his conscience
told him that he really must do a little injustice to
employers, to balance matters.* Lord Bramwell's
* Judges in the course of their professional duties are not
confronted by realistic contrasts of the workaday world in
quite the same way, since in a court of justice every layman —
plaintiff, defendant, juryman, witness, spectator — looks equally
uncomfortable all the time ; whether he is a rich or a poor
man makes no difference. It is not that English Judges are
unfeeling. They would, perhaps, prefer to decide cases by

COMMON LAW ' THE ENEMY' 345

attempts to get the public to think about the
question were not very successful. He even failed
to convince either the Times or the Economist. A
Judge (off the bench) and a few lawyers took a
different abstract view of the law — or rather of the
principle announced in Priestley's and Hutchinson's
cases — from Lord Bramwell. Common Law was a
little under a cloud at the time, not for Bentham's
reason, but for Mr. Ruskin's reason. The fashion
was to apologize for it. Mr. Sidney Webb wrote
in a monthly magazine, January, 1897 :
' The lawyer's contention that the wage-earner, by entering
into a contract of service, had placed himself in a position
different from that of the ordinary citizen was incompre
hensible '
to Parliamentary Committees, which is extremely
probable. The Committee of 1876-77 had reported
' " negligence in the employer or in some person . . . whom he
has the power to dismiss must, of course, be shown." But . . .
why should more be required in the case of a workman than
in any other case ? The proposed legislation . . . would be
merely the repeal of exceptional exclusion of them from the
ordinary protection of the law.'
However, when the leaders of both political parties
have all their lives been pledged to reject the
principle in a Ministerial measure, while their
followers do not take trouble to inquire what that
principle is, the measure is described as ' non-
contentious.' Newspaper leader-writers are then
saying to the jury, ' Gentlemen, the only question is, which do
you feel really sorry for, plaintiff or defendant ?' After all, an
M.P.'s duties are pleasanter than a Judge's.

346 A MEMOIR OF LORD BRAMWELL
grateful that they have not to look up the Ten
Commandments to see whether the measure is
barred there. Finally, all parties say they will
unite to improve it in Committee. Conservatives,
staggered by their smashing defeat in the March
previous, were just then wondering in what way
Mr. Gladstone's great power would be used to
chasten England for her sins : Ireland seemed likely
to be the ordained instrument. In the summer of
1880 the formidable energy of the Land League
absorbed people's thoughts.
Mr. Sidney Webb says* the Employers' Liability
Bill encountered 'furious opposition from the
employers.' There was much press controversy,
many conferences, but no furious Parliamentary
opposition, no division in either House. After
some fighting in Committee the Bill became law
September 4.
June 9, 1880, Lord Bramwell wrote to Sir Henry
Jackson, Bart., M.P., his
' . . . reasons for saying that the common notions of lawyers
as well as laymen, as to the reason of the non-liability of the
master in cases of common employment, are wrong. . . .'
This letter was afterwards published as a pamphlet
by P. S. King, King Street, S.W. :
' On the Liability of Masters to Workmen for Injuries
from Fellow Servants.
' . . . Those who propose to make a law, in truth propose
to alter what exists, and should give a good reason for the
* ' The History of Trade Unionism.'

EXCEPTIONS OR RULE? 347
change ; . . . most certainly . . . when the new law is pro
posed on account of some alleged hardship, or anomaly in the
old law. ... It is said that the existing law, as to the
liability of employers for negligence of a servant causing
damage to a fellow servant, is anomalous, ... an exception
to a general rule which makes employers liable for the negli
gence of their servants, a grievance to workmen, and a
grievance without justification. It is somehow supposed that
as a matter of natural right (something that exists in the
nature of things) employers are liable for injuries occasioned
by their servants' negligence, and that to except fellow servants
from this rule is unjust and unreasonable.
' Now this is an entire mistake. . . . The primary rule is,
that a man is liable for his own acts, and not for those of
others. A man, as a rule, is no more liable for the wrongs
done by another than he is for his debts. Cases in which he
is liable are exceptions to the rule, not the rule. I will pro
ceed to state the exceptions.
' i. When a man undertakes to do or perform any work, he
undertakes that it shall be done or performed with reasonable
care and skill. If he does or performs it himself and is
negligent or unskilful, and damage results, he is liable. So he
is if he does or performs it not himself, but by agent or deputy.
For instance, if a smith's servant in shoeing a horse hurts it
by negligence, the master is liable ; so would he be if he got a
neighbouring smith to shoe the horse and he injured the horse
by his negligence. So a railway company that undertakes to
carry a passenger from A to B, is liable for damage occasioned
to the passenger by the negligence of its own servants ... or
of the servants of another company. ... In this case the
servant or agent is not liable.
' 2. The next case in which a man is liable for the act of
another which causes injury is, where he has expressly caused
or commanded that act. . . . This class of cases also has
nothing to do with the relations of masters and servants. The
employer is equally liable whether the person who did the act
complained of was his servant, or his agent and not his
servant. . . . The reason of this rule is obvious. The wrong

348 A MEMOLR OF LORD BRAMWELL
has been done by him who procured it as much as by the
actual doer, and the maxim qui facit per alium facit per se
applies. ' 3. There is a third class of cases in which a man is liable
for the act of another. If a servant — acting within the scope
of his authority — by negligence — injures one of the outside
world (an expression I will explain presently), his master is
liable. It will be observed that four things are necessary to
constitute this liability. First, the actual doer of the mischief
must be a servant of the person sought to be made liable. It is
not enough if he is employed otherwise than as a servant. If
I employ my servant to pull down a wall, and by his negli
gence he injures a passer-by, I am liable. If I had employed
a firm of builders or a working bricklayer to do it, I am not
liable. I do not know that it is necessary to define or describe
a servant. Shortly, the relation of master and servant exists
where the master can not only order the work, but how it shall
be done. When the person to do the work may do it as he
pleases, then such person is not a servant.
' Next, my servant, if I am to be held liable, must be acting
within the scope of his employment. If my coachman takes my
carriage and horses to give his wife a ride and is guilty of
negligence causing damage, I am not liable. Next, damage
to be recoverable against the master must be the result of
negligence. If caused wilfully, the master is not liable. If my
coachman wilfully drives against anyone or his carriage, I am
not liable for the damage resulting. Lastly, the master is
not liable to anyone with whom he has entered into some
relation, unless such liability was one of the terms of that relation.
The person injured, to have any remedy, must be one I
have called " of the outside world." Thus, if my servant
drives over a stranger, I am liable. If my friend, having
a pleasure drive with me is injured by my servant's negli
gent driving, I am not liable, because liability is not one of
the terms of our relation. If my friend had paid me money
to carry him, I should be liable under the first head of liability,
because I had contracted with him that he should be carried
with care. If my servant leaves a stumbling-block in the

CHOICE AND NO CHOICE 349
street in the course of his work and anybody falls over it, I
am liable. If he leaves a trap-door open in my house and my
guest falls through, I am not liable. The reason why I am
not liable in the cases in which I am not, is the general one
I started with, viz., a man as a rule is not liable for the acts
of others.
' Another reason ironically given, but which has great prac
tical effect, is, that the master is liable because he is a
competent paymaster, while the servant usually is not. There
is another reason which exists in fact ; whether good or bad,
is another matter. A man is walking on the Queen's high
way and run over by my servant. He may say, with some
colour of fairness, " I was doing what I had a right to do. I
was injured by your servant. I had no voice in the choice of
him. I could only keep out of the risk of injury from him
by foregoing my right to walk in the public streets. Therefore
to make you and other masters careful in the choice of servants
to whom you give the means of mischief, you and other
masters must compensate for that mischief when it happens."
Now I do not say that is a sufficient reason, but it is the only
one I know of, and it is not a reason applicable to the case
of one servant injuring another, for then each servant has a
voice in the matter. The master hiring a servant says, " Here
is your work, here are your fellow servants, work for me or
not as you please." The servant may say, " I do not please
so long as so-and-so is in your service, for he is negligent."
' There is, then, no general rule which makes one man liable
for the negligence of another. The general rule is the other
way. I have described the exceptions, but the case of one
servant injuring another is not within those exceptions nor
the reason of them, but the contrary. It has been said the
servant " contracts himself out of the right to compensation."
It would be better to say he does not contract himself into it.
He can if he and his master so agree. Nay, he can stipulate
for compensation where there is no negligence. He does not
contract that his case shall be an exception to the general rule
that a man is not liable for the acts of another. There is no
injustice in this. There is in the proposition the other way.

350 A MEMOIR OF LORD BRAMWELL
For no one can doubt that the dangers of an employment are
taken into account in its wages. No one can doubt that the
unpleasantness and risk of a miner's, or a deep sea diver's
work add to his wages. Put sixpence out of the miner's daily
wage of five shillings as being on account of that risk, a sum
which he may save or use as a premium of insurance. What
is the proposal of those who would make the employer liable
but this, that the servant shall keep the premium in his own
pocket and yet treat his master as the insurer ? I do not believe
that this is understood, or it would not be asked for ; but it is
the truth.
' So much for the existing law, and so much for the reason
of it. Now for the proposed change and the reason of it.
' The largest proposed change is, that the master should be
liable to his servant for the negligence of a fellow servant.
Why ? I have shown that the supposed grievance does not
exist. That it is not a " natural right " that the master should
be liable, nor does such a right exist in the nature of things.
That it is reasonable a railway company should be liable to a
passenger for the negligence of its servants, because it has so
contracted, and that it should not be to one of its own servants,
because it has not so contracted. We are to start afresh, then,
and make a new rule. Why ? I have two servants, A and
B ; A injures B and B injures A by negligence ; why should
I be liable to both when, if each had injured himself I should
not be to either ?* Only one reason can be urged for it, viz. :
That on the whole, looking at the interest of the public, the
master and the servant, it would be a better state of things
than exists at present. Is that so ? Now we must start with
this, that it is under the present law competent for a servant
to stipulate with his master that the master shall be liable for
the negligence of a fellow servant, or in respect of any hurt or
injury the servant may receive in the service. So that the
difference in the law, if changed as proposed, would be this.
* ' As has been amusingly asked, why, if the housemaid puts
damp sheets on the footman's bed and he leaves the scuttle at
the foot of the stairs and she tumbles over it, should the master
be liable for the damage ensuing ?'

WHO WILL PAY THE BILL? 351

At present the master is not liable, unless he agrees to be ; on
the change he would be unless he and the servant agreed he
should not be. For / suppose it is not intended to forbid the
master and servant contracting themselves out of the law. . . .*
That would be a most mischievous interference with freedom
of contract, and would give rise to gross injustice and fraud on
the master. I cannot suppose anything so outrageous, and proceed
to consider what will follow if the liability is optional (but to
exist where the parties have not agreed to the contrary).
Every prudent employer of labour will immediately draw up
a form to be signed by his workmen, that the master shall not
be liable for a fellow servant's negligence.
' What good will the new law do ? None to the workman,
except in such cases as I have last mentioned, cases of surprise
and injustice ; for where it is known it will be guarded against.
And even if the law were made obligatory, in spite of bargains
to the contrary, it would not profit the servant. Because it is
certain there is a market rate of wages, one fixed by what
neither master nor man can control. If wages are practically
added to one way, they will be taken from in another. If a
manufacturer whose wages now are £"10,000 in the year is
made to pay compensation to the amount of £"1,000 a year, his
wages will fall to £"9,000. Were he to charge more for his
produce because he has to pay more his sales would diminish
and injury be done to the workman in loss of work.
' What good, then, will the change do ? . . . The only thing
I have ever heard suggested is, that it will make the master
more careful in the choice of his servants. I suppose it would.
For it would not have an opposite tendency. . . . Now I do
not say that workmen will injure themselves for the sake of
compensation ; but I do say, that whatever tends to lessen
their reason for care and good conduct (as compensation would)
tends to make them less careful in themselves and more dis
posed to conceal want of care in others. . . .
' No servant is bound to obey a command attended with
danger. . . .
' One word more. It is proposed to guard the master by
* Forbidden by Act of 1897.

352 A MEMOIR OF LORD BRAMWELL
provisions that he shall not be liable if the servant contributed
to the injury. There are other qualifications. In vain. The
untruths told in accident cases are prodigious. They will be told in
such as the Bill will give rise to. I foresee a frightful crop
of litigation if it passes.
' G. Bramwell.'
In the following month a Times leader said :
' A railway collision may be caused by negligence of a
signalman or a pointsman. The company is liable for the acts
of its servants to all the passengers injured, but the guard,
who in most cases is just as much a passenger as any who
have paid for their seats, is entirely deprived of compensation.
. . . No legal ingenuity can hide the substantial injustice. . . .'
July 19, ' B.' wrote :
' There is no injustice to be hidden by legal or other
ingenuity. The company is liable to the ordinary passenger
because it bargains with him that due care shall be used in the
carrying of him ; is liable whether the accident was caused by
the negligence of the company, of its servants or agents, or of
another company which continued the carrying begun by the
company which received the fare. If there is no such bargain
with the company — as, for instance, with a drover travelling
with cattle — the company is not liable, not having bargained
that they will be. They might make such a bargain as the
law stands, but they do not. The proposed law [Bill of 1880]
would in some cases create such a bargain between the guard
and the railway company . . . How is the guard at present
" deprived " of compensation ?'
He wrote again in August, 1880 :
1 Employers' Liability.
' ... Mr. Broadhurst, M.P., is reported to have said at the
Trades Union Congress " that they only asked for the same
rights to be extended to workpeople which were given to all
other classes of the community." And he quoted what had

'A LOGLC OF LAW' 353
been said by an authority than whom there is none higher, that
" he could not see what logic of law or public right there was
for any number of the public to have full protection and
unlimited compensation in cases of accidents, and then to deny
it to the workmen." I should doubt if the words quoted were
used, but undoubtedly the noble lord referred to did say in
substance that which Mr. Broadhurst attributes to him.
' With all submission it is wrong. The matter is important.
For if workpeople are treated differently from the rest of the
community to their injury they are more than justified in
struggling to get the injustice removed. But they are not
treated differently, and you will perhaps think me warranted
in asking you to let me state what is the law and what is the
reason of it, when it will appear that the complaint is un
founded. . . .'
After restating the law, as in previous letters, he
adds :
' . . . All I say is . . . that there is " a logic of law " (what
ever that may mean) why the public — between whom and a
master there is no relation — may have rights which the work
man, between whom and his master there is a relation, has
not. ... It matters little how the law is if master and
servant are allowed to make their own bargains. This is
objected to by Mr. Broadhurst and others, because the poor
fellows, the servants, cannot take care of themselves !'
The prolonged agitation for the Act of 1880
demonstrated the growing ascendancy at a particular
epoch of socialistic ideas among trade union leaders.
Socialism aims at reducing all workers to a quasi
servile status, tempered by State doles. The Em
ployers' Liability Act of 1880 conceded one principle
insisted on by Socialists — discountenanced to a
certain extent that free contract relation existing
between employer and employed. Degradation of
a particular class, from contract down once more to
23

354 A MEMOIR OF LORD BRAMWELL
status, marks agrarian and economic legislation
after 1870 ; English, Scottish and Irish tenants and
wage-earners being deprived of the right, responsi
bility — or peril — of making their own bargains with
landlords and employers. Put coarsely, the terms
offered by Liberal statesmen were these : ' We
practically reduce you to the legal, non- contracting
condition of infants, lunatics, or drunken men ; but,
in exchange, we will take some money, or its equiva
lent, from those with whom you have relations of
hiring, and give it to you.' Although not so ex
pressed, the offer was so understood, and not dis
liked by such English and Scottish tenants and
workmen as interested themselves in this kind of
legislation. Trade union combination already to
a limited extent did involve the surrender of a
man's absolute liberty of bargain. Joining a trade
union was, however, a voluntary exercise of will,
while the Act of 1880, in a slip-shod, tentative way,
established a new status for all workmen. But
since nothing whatever was said in it about ' con
tracting out,' the old Common Law right stood, and
agreements between masters and servants were still
held good by the courts. Nothing requires cleaner,
neater workmanship than the substitution of Statute
for Common Law ; the Act, however, was very
clumsily put together. Existing relations could
hardly be said to be so flagrantly interfered with as
in the case of tenancies of land, because hiring was
generally by the week. A few large employers of
labour surmised that the Act would benefit them ;
would hamper and injure small employers ; thus in-

A CLUMSY REVOLUTION 355
directly but surely reducing competition amongst
wage-payers, while increasing competition among
wage-earners. However, no British working-man
was sold into slavery at public auction. Lord
Bramwell said in 1884, ' The Act does not seem to
have done much harm.'* It is alleged by employers
in certain trades to have produced, as Lord Bram
well leared, systematic perjury and conspiracy
among workmen to commit perjury ; aggravated no
doubt by growing contempt for the sacredness of
the oath, due to education and progressive views
about religion.
The public — and, according to the testimony of
recent spokesmen for 'labour,' the bulk of the
working-classes also — never cared much about the
Liability Act of 1880. Lord Bramwell thought the
matter important, and tried to make people under
stand why, believing that those entrenchments
crowned and fortified by the Common Law of
England were the first — and that with him meant
the impregnable — line of defence against infringe
ments of civil freedom, against wrong or delusion,
small or great, threatening employers or employed.
In a sense he was right ; that his idea must win in
the long-run we must all believe. Wrong he was in
a sense, because the new, prosperous, good-natured
England, which had come into being since Lord
Bramwell's early days, preferred new ways of doing
the right thing, of mitigating injustice, more hazy and
roundabout, less direct and clean-cut than his way.
A plea for contract, insistence upon the ex-
* ' Laissez Faire,' p. 144. 2 3  2

356 A MEMOIR OF LORD BRAMWELL
pediency of allowing men to freely regulate their
dealings by means of it, was once more made by
Lord Bramwell in the matter of the Ground Game
Act of 1880, better known as the ' Hares and
Rabbits Act.' The political history of this rather
paltry measure may be safely neglected. More
interesting is the demand for it in some quarters as
a genuine specific for ' increasing the productive
ness of English land,' while compensating the
British farmer for the pressure of foreign competition
in agricultural produce, at the time becoming more
and more perceptible. Many people honestly
believed that ground game ate up enough grain
and other food-stuffs to make a sensible difference
in food production. Although he never shot hares
or rabbits,* it was indignation at this particular
measure which actually led Lord Bramwell to join
the Liberty and Property Defence League. In the
Times of June, 1880, he wrote :
' I am very sorry that the Hares and Rabbits Bill has the
approval of the Times. I most earnestly deprecate its becoming
law. Let me say why : A land-owner's terms for a farm are
£100 a year if he has the game, £"120 if he has not. A farmer
is willing to take on either condition. Both prefer the former.
The proposed law is to prevent them making a binding bargain
* His only performance with the gun was during a visit to
Lord Westbury's country house, about the year 1865. Pigeon-
shooting was the fashion in those days, and the Bethell family
of that epoch possessed, in a rare degree, the instincts of this
difficult sport. Sir George Bramwell fired at a pigeon, blew
it to pieces, and didn't like it at all. Never went out shooting
again. Up to about the age of fifty he used to ride in the
Park now and then, but was never a good horseman.

POLITICAL GROUND GAME 357
to that effect. They make such a bargain, in fact, but as soon
as they have the farmer may break it, and, having got his land
cheap because he was not to have the game, may nevertheless
take it. What excuse or justification is there for this ? Only
one, which the Times has very ingeniously invented — viz., that
it is for the interest of the public at large that the occupier of
land should have an inalienable right to destroy ground game.
If that were so, if it were so to a sensible extent, and there
was no other remedy, so as to justify an interference not merely
with freedom of contract, but with the use and enjoyment of
property, I agree such a law would be right, but it would be
an entire novelty. The law forbids, and, if it did not, ought
to forbid, the use of land in a way harmful to the public ; but
it has never prescribed the way it should be used and enjoyed
on any such ground as public profit. Where is such legislation
to stop ? Are deer-forests to be turned into sheep-walks, parks
to be ploughed up for turnips, flower-gardens to grow cabbages ?
If this were the reason of the legislation, Parliament should go
direct to its object, and not merely permit, but order, the killing
of the ground game. But it is not the reason the farmers put
forward ; and this Bill owes its origin partly to that mischievous
meddling which prompts interference by the Legislature in
matters which ought to be left to private agreement, and partly,
I am afraid, to a desire to conciliate the farmer. It may have
been necessary to legislate to protect factory children, women,
possibly men grown up, as by the Truck Acts, sailors who
cannot judge for themselves as to the safety of ships, and
perhaps in other cases ; but the British farmer ! Is he to be put
among the feeble and helpless who require to be taken care of,
because he cannot take care of himself? He should be ashamed
to ask for such protection, especially now, when the landlords,
for want of tenants, are at his mercy. How is it forced on him
to let his landlord have the game ? If he ought not to have it,
why does not the farmer say so like a man and refuse the
tenancy ? It is shocking to think of the moral feebleness such
legislation encourages. It is all very well to say that the
landlord wants two profits : the rent of the land from the
farmer, and the use of the land for the game. It is more true

358 A MEMOIR OF LORD BRAMWELL
to say that the farmer wants two profits — viz., the land cheap
on account of the mischief done by the game, and compensa
tion afterwards for that mischief. Should the Bill pass, it will
be evaded and give rise to disputes and frauds. If the farmer
is the helpless creature supposed (and unless he is, this legisla
tion is not required), he will agree that his landlord shall have
the game. If he breaks that agreement, he will do a dishonest
thing, and he will be turned out after profiting for a short time
by his fraud. If he cannot be turned out, fhe law will invite
him to cheat, and reward him for doing so. Landlords will
turn their tenants into bailiffs ; other devices will be resorted
to. Is the occupier to take out a licence to kill game ? I will
not ask for more of your valuable space. I know nothing as
to whether by the proposed law we shall have more or less
hares, rabbits, pheasants, and foxes. I do not write in the
interest of landlords against tenants, preferring, indeed, the
latter as more numerous, and because I am more interested in
their prosperity than in the love of sport and killing. 'B.'

One effect of the Act of 1880 is alleged to have
been exactly the opposite to that intended. Rabbits
breed and pass most of their lives close to or inside
copses or coverts, but no provision in the Act em
powered farmers to enter plantations in pursuit of
game. Rabbits seem to have increased in numbers
since the Act came into operation. Farmers, their
sons and their friends, are not sorry for this, since
rabbit-shooting is good enough sport. Sometimes
farmers let the shooting (to the ' one gun ' permitted
by the Act) on the quiet. Hares, which breed in
open fields or by hedgerows, being more defence
less, have been reduced, according to various
authorities, by from 50 to 75 per cent, since 1880.
It is said that rabbits kill young leverets, and that

THE RABBIT VERSUS THE STATE 359
hares will not feed on ground where rabbits have fed.
Whether the Act has increased the productiveness
of farms is uncertain. The whole thing is still
described as a paltry and unjustifiable interference
with land-owners' rights. But no land-owner has died
of starvation in consequence. Most of the people
who advocated it have forgotten all about the Hares
and Rabbits Act of 1880. An Act compelling all
insurance agents to wear yellow waistcoats on Good
Friday, although an interference with personal free
dom, would not affect the general prosperity of the
nation. Business would go on much the same as
usual afterwards — a truth forgotten by many people
who talk as though repeal of laws guaranteeing
liberty of the subject — the Habeas Corpus Act, etc.
— must at once compel chaos.
Lord Bramwell was, however, very angry about
this Hares and Rabbits Act, just as he was about
injustices done to utterly uninteresting speculators in
town property under the Disused Burial Grounds Act
— angry about unfairness to persons he never knew,
nor cared to know. He did not on that account join
the pessimists, according to some authorities, people
eager to prove that their neighbour must share that
ruin which they have brought on themselves by
private misconduct. The condition of the thinker's
nerves and internal organs may have something to do
with it too. Lord Bramwell was born of too healthy
a stock, worked too hard, was too free from remorse,
to be a pessimist.
He was a big, burly man, sound and strong;
never had any of those ailments which induce a

360 A MEMOIR OF LORD BRAMWELL
man to pity himself, and make cures, systems of
diet, and so on, important everyday questions. All
his life he was an early riser, a habit which is prob
ably quite as much an effect as a cause of physical
and nervous healthiness ; after he was fifty years of
age he generally went to bed at ten o'clock, and
could sleep nine hours on a stretch. On fine
summer mornings he would leave his bedroom at
six o'clock, carrying his coat and waistcoat over his
arm. On the stairs he usually finished tying his
neckcloth, at the breakfast-room door put on his
coat. At Edenbridge and in Cadogan Place, if
there were no guests and the weather was hot, he
would sit at table in his shirt-sleeves — the servants,
no doubt, shocked and awed, for he inspired awe.
Coat or no coat, he always had that emphatic, kingly
air and manner — nowadays all but extinct — which
one fancies the figures in some of the old historic
portraits must have had.
Lord Bramwell knew nothing about ' the ruin of
England.' Having travelled so much, he doubt
less saw that it is not easy to ruin England. It
is a very big firm, but there is some evidence that
national character, which built up the firm and is all
our own to experiment with, can be 'ruined,' can,
by taking thought, be slowly enfeebled. Mischief
wrought by petty but frequent interferences with
personal freedom, especially with liberty of bargain,
estimated in terms of national character, gives, as
result, diminished initiative and self-reliance, less
capacity to take responsibility, increased disposition
to clutch the apron-strings of ' Government.' These

PERHAPS 361
things tell in competition with foreigners. The
roving Englishman misses those public luxuries and
sops which, when at home, he gets from ' the State,'
or the municipality, and cannot, there is some reason
to believe, hold his own contra mundtim as of
old. Traces of mischief may be identified in that
direction, rather than in the Board of Trade
returns ; for the wealth accumulated under Free
Trade has enabled the nation to buy its way out of
the consequences of those many treasons to Free
Trade which Lord Bramwell protested against.
Britons still find sundry ways of evading the ethical
ingenuity of our legislators and inspectors. Again,
that which appears to be an ' effect ' of State inter
ference, grandmotherly government, and ' some
kind of Socialism ' in legislation, may all the time
be a ' cause.' Possibly legislation hurtful in the
long-run to national character was submitted to,
welcomed, just because many civic virtues were
already things of the past, before latter-day British
legislators set to work at all. Children and grand
children of the pauper hordes bred under the old
Poor Law, concentrated in working-class centres
and enfranchised, gave Mr. Gladstone his mandate
in 1868 and 1880. If free from the coarse vices,
they lacked the rugged virtues of ' the populace '
who shouted for Sacheverell, Wilkes, or Fox, who
fought under Wolfe, Moore, Nelson, Wellington ; or
they represented a crop of Britons, large, certainly,
but, like those bulky crops grown on sewage farms,
not sound at the core. When Lord Bramwell
appealed in vain to ancient British prejudice in

362 A MEMOIR OF LORD BRAMWELL
favour of liberty of the subject, the right of property,
independence, self-help, etc., perhaps it was not so
much that the Britons he had in mind were deaf or
hostile — they were merely dead.
He was very jealous in his old-fashioned way for
justice — a perfect fanatic about it, as Pym, Wilkes,
Cobbet, the Napiers were. His laborious legal
training, much thankless drudgery in the courts,
never cured him in the least of his habit of vexing
himself about things which he might easily have left
alone, when he got a regular income. Anybody's
wrong was his own personal wrong. As also happened
to a long, long array of men who went before him in
the same place, dying in due time, having their
reward, we conclude, although we are not sure what
it was, Lord Bramwell had absorbed into his blood
that animating spirit and quality of English justice
which has never departed far from the King's
Courts. He was proud of his office and its
traditions, as the sailor is of his ship flying the
white ensign, as the soldier is of the regimental
colours, or of the silver cross, sanctified by the
names of many battles fought in outlandish places —
long ago and far away. All these men alike work
for something more than their pay. Precisely what
it is Englishmen are slow to say ; also slow to
believe, amid the drone, drone, drone of dusty,
foggy courts of law, that worn, bent, weary old men
one sees sitting on the bench there worked and
struggled and wore themselves out, buoyed up by
the very same spirit which sends often mere lads,
full of life, to challenge death in front of their

THE ENGLLSH WAY 363
comrades — some dying on the deep sea, some in the
snow, in the thick woods, or up among the rocks.
Many who had the right spirit have died without
witness or honour, leaving no record of their
fidelity, except among a few who remember. Lord
Bramwell had great honour in his long, peaceful
lifetime, and was much loved. By-and-by, those
who care to remember him as he used to be will
pass away also. What will outlive all memories of
his personality — because a transmissible, imperish
able quality — is his single-minded loyalty and con
sistent adhesion to that English way which he had
learnt was the only sure way to compass justice.
He was consistent, to the point of fanaticism, about
apparently trifling things, not because he was a
pedant fitted to one groove, but because he early
learnt, and never forgot, that the man who delivers
judgment must never swerve.
He well knew that it would not do for him to say
from the bench : ' On Mondays, Wednesdays, and
Fridays I will decide according to evidence and
law ; on Tuesdays, Thursdays, and Saturdays we
will inquire into the " right mindedness " (or
" wrong-headedness ") of the parties, and decide
according to the higher ethic, deep, spiritual ideals,
wider conceptions of the needs of humanity and
social justice.* I do not know what social justice
* During debate in the House of Commons, in July, 1897,
Mr. Asquith mentioned two new kinds of justice, ' ethical
justice ' and ' political justice.' ' Diamond Jubilee justice '
also began to be heard of at this date. A landlord having
tried to eject a defaulting tenant, a barrister (apparently) wrote
from the Junior Carlton Club, May 25, 1897, to one of the

364 A MEMOIR OF LORD BRAMWELL

means, neither do you, but we nourish the large
hope.' He could not say that, although it is an
easy formula ; and expressed good intentions, not
bad. He could never see why a poor voter should
have fuller measure than a rich taxpayer. When
Mr. Henry George happened to declare in ' Pro
gress and Poverty' that the Almighty had given
' the puniest babe that comes wailing into the
world ' as good a title to Mr. Astor's or the Duke of
Westminster's estates as the legal owners have,
Lord Bramwell remained unsympathetic. If another
man had written a book to prove that the Almighty
yearned to have Mr. Henry George hanged, Lord
Bramwell would never on that evidence have non
suited the American economist. When invited to
admit that the property of landlords, of tithe rent-
charge owners, of shareholders in various companies,
ought to be expropriated without compensation and
given to other persons, who either did not like to pay
what they had contracted to pay, or suffered from
'earth hunger,' or committed outrages, or had many
votes, the effect upon Lord Bramwell was precisely
the same as if the Lord Lieutenant of some county
had taken a seat beside him on the bench during
Assizes when a farm-labourer was on trial for assault
ing a policeman, and said : ' I see, Sir George,
there is no evidence against this prisoner, and the
newspapers : ' . . . After all, to uphold the landlord's un
doubted right is to enforce the morality (the Common Law) of
a past age, while to adhere to the letter of Section 106 is to
practise the morality of the Diamond Jubilee Year, 1897.'

MEASURE AND GAUGE 365
jury will probably acquit him ; but I want you to
give him a year's imprisonment, all the same. The
fact is, the fellow's uncle is a tenant of mine, and
an incorrigible poacher. It will be an example
to the dangerous classes.' Why should an uncon
victed man be sentenced because his uncle is a
poacher ?
Of others, as well as of Lord Bramwell, it can be
said that they had (or swore to themselves that they
had) a passion for justice. Nevertheless, they went
astray and did infinite mischief. What measure
and gauge did Lord Bramwell apply to test fidelity
to this same 'justice'? Was his a good or a bad
standard ?
His letters, addresses, everything he said or
wrote on public questions, enable us to contrast his
method of determining questions of personal right
with those methods which were revived and became
fashionable under Mr. Gladstone's influence. All
extra- reasonable, or supra-legal systems and theories
of judicial, economic, or social relations, from Con
fucianism to Fabianism, have been driven to rely
upon alleged superhuman sanction or inspiration ;
are necessarily capricious, one day hot, another day
cold, because subject to ever-variable interpretation
by self-constituted high-priests and medicine-men,
who pretend to know what their fetish likes or
dislikes. Canonists pronounced certain business
transactions between buyer and seller, landlord and
tenant, ' idolatry,' contrary to jus naturale or lex
divina. Ultimately that gave a most dangerous
latitude; for all the time it was only one man

366 A MEMOLR OF LORD BRAMWELL
guessing at the will of Nature or the Almighty — a
guess perhaps given with intention to do justice.
But as years went on other canonists and legists
came along, of whom one might have bought his
office from a great man's mistress, while another
had poisoned his seniors and so risen. They also,
by virtue of the essentially extra-reasonable, or
superhuman, sanction attributed to their rulings,
were able to declare, just as sententiously, that such
and such commercial transactions or claims of per
sonal right were ' idolatry ' and displeasing to God ;
but this time because they had been bribed to say
so. When you have bribed the Almighty, it is no
use for the other man to go to the Court of Appeal.
Knowing all that, the English would never recog
nize Canon law, preferring to go before their own
men, who decided according to precedent, or to
what had been done in their father's time ; at all
events, by some reasonable rule which a plain man
could understand.

[ 367 ]

CHAPTER XI.
THE LAST CHAPTER.
Last speech in the House of Lords— Sticks to the same story
— Letters to him — Not wanted, and yet much needed,
in the House of Lords — Goes there no more — May g,
1892.
Friday, March 6, 1891, the Earl of Wemyss called
attention to the strike of railway servants in Scot
land, ' to the system of picketing, and the outrages
by which it was accompanied,' and asked the
Government whether they would take such measures
as would in all future strikes ensure due protection
to unionists willing to work and to non-union work
men ?
Lord Bramwell thus spoke towards the close of
the debate :
' I wish to say a few words to your lordships upon this
subject, more to lament the existence of what I believe to be a
very great evil and mischief than to suggest a remedy for it.
I have always said and held that by the Common Law of the
land there is nothing unlawful in a trade union. And now
there is nothing unlawful in it by statute. I have said the
same thing of strikes ; they are not unlawful, and they are not
even without, in many cases, great justification. I see nothing
immoral in them where the only object is to raise the wages

368 A MEMOIR OF LORD BRAMWELL
of the strikers, and, as you have heard, I have said and do say,
there is nothing unlawful in picketing provided that it is law
fully practised. But that is what it never is. I do not know
the particulars of the Scotch strike or of the Scotch picketing,
but I do not see how your lordships should reasonably have
been led into a discussion whether it was a laudable strike and
laudable picketing or not, because some of that picketing of
which we have heard could not have been lawful under any
provocation. If the men received any provocation, about which
I express no opinion, the remedy was not to break the heads
of those who did not choose to join them, or throw stones at
engines and demolish stations. Their remedy was a different
one. If the picketers had only done what they pretend and
nothing more, that is to say, if they had merely met their
fellow-workmen in a friendly way and asked them to join, with
nothing but a kind of persuasiveness in their manner, nobody
could have objected to it ; they would have a perfect right to
propagate their own opinions, and try to get persons to ally
themselves with them. But that picketing would not pay;
it would not be worth the trouble to picket in that way. The
picketing must be of such a character as to inspire terror.
That is the object of picketing, and it is attained tolerably well
in many cases. Your lordships have heard that I tried — I
am sure I do not know how many years, I believe twenty
years ago — a picket case in connection with a tailors' strike,
which, as far as I remember, was for no other reason than an
increase of wages. They would, I dare say, have said that
they had picketed in the mildest possible way. My noble and
learned friend on the woolsack [then Mr. Hardinge Giffard,
Q.C.] was one of the counsel that defended one of the picketers,
and got him off, and he will be able to tell your lordships
whether I am exaggerating. The men who had not joined in
the strike were in such terror of these pickets that they did
not dare to take their work home to the master tailors ; they
got their wives to do it in many cases, and it was pitiable to
see the women in the witness-box — they were in the greatest
possible terror, and described the treatment they had met with
to be of such a character that it was not surprising they were

LAST COUNSEL 369

in that condition of alarm in which they exhibited themselves.
It matters not that there is no blow given — though I believe
there are few cases of extensive picketing in which there is no
blow given ; if the conduct of the pickets was such as to excite
terror in the minds of those picketed, and to deter them from
doing their lawful work, I say it is an intolerable wrong and
mischief both to the men who desire to work and to the com
munity at large. It would be bad enough if it were some
benevolent, intelligent autocrat who terrorized over people in
this way ; but when you consider that the tyranny is exercised
by people who are actuated by ignorance and greed, it is insuf
ferable, even though there may be no blow provable. I have
said I do not know what the remedy for this is. You could
not put down trades unions if you would, and I for one would
not ; on the contrary, I take the liberty of saying before your
lordships, what I have said before in open court : if I were
a working-man, I should be a unionist. I think that trades
unions are useful institutions, and I would strike for good
cause. You cannot get rid either of trades unions or of strikes.
You have got now an excellent law against unreasonable
intimidation — if one may use such an expression— if we can
suppose there ever was any reasonable intimidation ; the
difficulty is in reaching the offenders and protecting those
persons who are injured and oppressed by it, and the only
thing that I can suggest as a remedy for what I believe to be
a most serious mischief is that the persons picketed, those who
do not agree with the pickets, should be carefully protected,
and that that remedy should be applied which the noble
Marquess has so well administered elsewhere, namely, that
the law should be enforced, and people taught that they could
not safely break it.'
This was the last speech he made in the House
of Lords, most ancient abiding-place of the Aula
Regis. No man who ever sat there was better
qualified than he to keep alive such of its reverend
traditions as survive. Men have schemed, flattered,
paid large sums to obtain a peerage and a coronet,
24

370 A MEMOIR OF LORD BRAMWELL
which they well knew would give them the only
kind of elevation they were ever likely to get.
When Lord Bramwell went up to the House of
Lords his patent gave him nothing that he had not
before ; rather he brought honour, added honour,
strength to that assembly during the ten years he
was there. His last words, it will be seen, were
what Lord Salisbury would call ' a sermon ' on the
text ever present to him.
' Let the laws of your own land,
Good or ill, between ye stand,
Hand to hand, and foot to foot,
Arbiters of the dispute.
* * * * -i:
' The old laws of England, they
Whose reverend heads with age are gray ;
Children of a wiser day ;
And whose solemn voice must be
Thine own echo — Liberty.'
So Shelley wrote, allegiance to ancient English
precept being in the imagination of the mutinous,
diseased young English aristocrat, also deep in the
mind of the laborious student — stalwart champion of
English institutions. During the remainder of the
session of 1891 Lord Bramwell was in London, hale
and hearty enough, but seldom attending in the
House of Lords. His old foes, enemies of liberty
and property, were nearly rid of him.
At this time he received this letter from a writer
of world-wide celebrity, who was not always quite
so wrong, since he happened to write a great deal
about the Irish Question :

BODILY AFFLLCTLONS 371
' November 2, 1891.
' . . . We had an instance the other day of the liabilities of
the present connection. To gain a majority in the Canadian
elections (which he brought on mainly for the purpose of fore
stalling certain awkward disclosures), Sir John Macdonald
appealed to Canadian dislike and distrust of the Americans.
His followers, of course, outran their chief. The platforms
rang with abuse of our neighbours, and the walls were covered
with placards and caricatures insulting to their character and
flag. The Americans, of course, noted all these things in their
book. They had, as I understand, special reports of the
speeches of Sir John Macdonald and Sir Charles Tupper, so
that they could not be deceived with the official versions after
wards put forth. To cap it all, Lord Salisbury cabled Sir
John Macdonald his congratulations on the victory. This was
at the time when negotiations about the Fisheries Question
and the Behring Sea Question were going on at Washington.
No wonder the British Ambassador has trouble !
'As to the mode of terminating the connection, what I
would like to see is a petition of the Parliament of Canada
granted by the Government and Parliament of Great Britain.
Heaven forbid that the parting should be violent or otherwise
than amicable !
' The American Revolution, I am persuaded, did the
Americans themselves a good deal of harm.
' If you get into a war with a maritime power, and the
Atlantic trade of Canada is seriously interrupted, the end will
come. A war with Russia would very likely do the business.
' Since the disclosures of corruption and the census there
has been a considerable growth of feeling in favour of political
union with the United States. . . .'
This letter he never read :
'22, Gramercy Park, New York,
'April 27, 1892.
' Dear Lord Bramwell,
' It grieves me to hear of your bodily afflictions. The
face of the fine photograph that you have sent me does not
24 — 2

372 A MEMOIR OF LORD BRAMWELL
betray suffering. Judging by that, I should prophesy that you
are good for some years more. I have sent the picture to be
framed, and shall hang it in my library. Thus I shall ever
look into the eyes of a great jurist. Notwithstanding your
depression of spirit, I hope you will mend and regain the
wonted vigour of earlier years. Count me always as one who
has great admiration for your life and labours, and believe me,
' Most faithfully yours,
' David Dudley Field.'
At the end of May, 1883, during debate on a
feeble proposal of Lord Stanhope's to break con
tracts and half confiscate some private rights, Lord
Rosebery plaintively observed : ' Any attempt at
legislation is at a great disadvantage when the noble
and learned Lord (Bramwell) criticizes it ' — a grace
ful way of testifying that folly is not always iron
clad, and that between 1882 and 1892 Lord Bramwell
did indeed prevent the passing of more than one
measure intended to conciliate foolish or spiteful
people, noisy at the moment, but long since for
gotten. After he died, in respect to many questions,
it was dunce's high holiday in the House of Lords.
The old race of legal giants — who made such debates
as those on the creation of life peerages, in 1856,
an education in constitutional lore — had passed
away. There was nobody left with sufficient grasp
of law, courage, zeal, power of logical statement, to
analyze, from Lord Bramwell's point of view, pro
posals aimed by the leaders of both political parties
at security of property and liberty of the subject.
What was everybody's business became nobody's
business. The peers, indeed, pulled themselves
together one afternoon in August, 1893, and made

LAST JOURNEY 373

short work of the Home Rule imposture. When
the Finance Bill of the following year, in an offhand
sort of way, repealed the Petition of Right, when
Lord Salisbury in 1897 talked about 'the "law" of
common employment,' Lord Bramwell was not there
to trouble his noble colleagues. Trial of the Appeal
case Sharp v. Wakefield having brought to light
some flagrant injustices possible under the Licensing
Acts, Lord Bramwell drafted a short Bill to remedy
those injustices ; and prior to the General Election
of 1895, Lord Salisbury promised, if returned to
power, to support this Bill. He was returned to
power. One foggy evening in the early spring of 1892 a
friend went to Lord Bramwell's house in Cadogan
Place ; there by flickering firelight he saw the old
lord sitting all alone at the piano, his hands wander
ing feebly over the keys, recalling some ancient airs,
as he once wrote, ' to comfort him.' At that hour
darkness was surely setting in. On Easter Sunday,
1892, for his last journey, he left London, where he
was born, going to Four Elms, by Edenbridge,
growing weaker there daily. On May 9, 1892, he
died at that house. His ashes were buried at
Woking. English dust to English dust.

[ 374 ]

INDEX

Lord BramwelPs pamphlets, letters, sayings, etc., are indexed in italics.

A.
A and B, inventors of contract, i8g,
note; solicitude for, 117, 147, 310,
3.23. 339
Abinger, James, first Baron, 334-342
'A bit of a Socialist,' 87, 138
Abstention, no
Abstract right to the franchise,' 116
Agnosticism, of our youth, 102 ;
economic, 163, 224
Agreement, for sale and purchase,
331, note; negative, 207, 341, 342.
See Contract
Agricultural Holdings Act (1883), 145
Agriculture and recent legislation,
132, HSi 153, 200-207, 209, 252,
302-306, 313
Alliance News, the, 274
Altruism, compulsory, 183
Amalgamated Society of Engineers,
in, note
Amiable opponent, an, 97
America : jurists and English col
leagues, 24 ; Dred-Scott case, 26 ;
and Common Law, 21, 181, note,
193; ' Declaration of Rights,' 197,
note ; and Canada, 371
Anderson, Mr., Q.C., 330
Apathy, 277
Appeal, Judge of (1876), 27, 80, 366
Aquinas, Thomas, 162, 187, 267
Arbitration, Geneva, letter to Lord
Tenterden, 52, 53 ; Earl Granville
and Earl of Selborne on, 54
Argyll, George, first Duke of, etc.,
letters from, 105, 106 ; referred to,
203; and Henry George, 245, note;
282, note; and Roman Catholics,
287
Armstrong, William, first Baron, 78

'Articles of Association,' 332, note
Ashley, W. J., 161
Asquitn, Right Hon. H., 363, note
Austin, John, 170, note
Australia and H. George's theories,
247, note
Axis, an, of ground, 294
B.
B  v. The Manchester, Sheffield,
and L. Railway Co., 148
Bank of England v. Vagliano, 61, 62,
80
Bankers, Institute of, N.S.W., 247;
London, 329 ; Magazine, 331
Banquet, Inner Temple Hall, Novem
ber, 1 88 1, 74-78
Bar, the, 17, 21, 73-77
Bargain, prohibition of, 128, 147;
'is a bargain,' 179; implied, 207.
See Contract
Bastiat, Frederic, 140, 141
Bates' case, 20, note
Bathing, Lord Bramwell's love of,
262
Baylis, Mr., Q.C., legal Universities,
68
Beaconsfield, Earl of, etc., 170, 172
Bear, Mr. W., 203
Becket, Thomas, 186
Beer, lack of tolerance for, 57, 58,
114, 211
Bees and men, 251
Belmore, Somerset, fourth Earl of, 288
Benson, Edward, Archbishop of Can
terbury, 109
Benfham, Jeremy, 162, 185, 345
Billiards, fondness for, 55
Bills, of Exchange, negotiability of,
62 ; of Sale Act (1882), 137

INDEX

375

Bishop Thorold, letter from, 109
Blackburne, Colin, first Baron, 24,
78
Blackstone, 9, 213 ; definition of con
tract, 182
Blue Ribbon oratory, 265
Bodkin, Judge, and navvy, 3
Bowyer, Sir G., etc., 335-339
Boycotting, 289
Brabourne, Edward, first Baron, 174,
319
Bramwells in North Country, 5
Brett, Sergeant, murder of, 297
British Association, address to, 1888
(extracts from), 9, 85-87, 127, 152,
note, 164, 178, note, 278
Broadhurst, Mr. H., etc., 161, 275-
277, 342, 352
Buckle, H. T., his hard yoke, 126
Bulwer, Mr. J. R., Q.C., on 'Tory
Democracy,' 98
Burke, Edmund, non-political Judges,
95; on nation's prejudices, 120;
Tories and, 95, 162 ; referred to, .
166, 185, 278, 282
Butler, Bishop Samuel, appreciation
of, 103-105 C.
Canada, quaint petition from, 371 ;
RieVs case, 46
Canonists and political economy, 90,
160, 161, 255, 335, 339, 366
Capitalist, our brother the, 89 ; debt
of nation to, 135-137 ; and ' the
State,' 231, 249-253
Caprice, divinely-guided, 159-161
Cases tried by Baron Bramwell, 27-
31
' Castle in the air,' recipe for, 130,
note
Catholic Relief Bill, 8, 101
'Caveat emptor,' 331
Chamberlain, Right Hon. J., etc.,
on land tenure (a.d. 1885), 220
Channel, Sir W. F., Baron of the Ex
chequer, letter to, 28, 29, note
Character, national, effect of legisla
tion upon, 361
Charades at Sir H. Holland's, 59
Charges to juries, 71-73
Chattels, ownership of, 212, 217
Christian economic teaching, 160,
182
Church, offertory, 102 ; reasons for
defending, 109 ; needs of the, 160;
attitude towards, 313

Circuit, Home, 17 ; entertained by
members of, 74
City workers, physics and politics,
86
Cobden, Richard, capital applied to
land, 209, note, 224
Cockburn, Sir A., L.C.J., 16, 24, 73,
105
Coercion, 291
Cohen, Mr. Arthur, Q.C., letter from,
196, note
Coleridge, John, first Baron, L.C.J.,
on names and vestments, 25 ; Lefroy
case, 73 ; on a great Bishop, 103 ;
on Sir A. Cockburn, 105 ; his
magnanimity, 194
Collier episode, 156, 294
Commercial cases, 18
Common Law referred to, 19, 21,
91-93, 161, 179, 182-197, 333-355-
367
Common employment, ' the infamous
doctrine of,' unknown in Greece,
etc., 195, 342 ; no such doctrine,
343 ; the ' law ' of, 342, note, 373
Commons, House of. See Parlia
ment
Commons, rights over, 219, 220-223
Companies Act (1862), 21, 329-332
Compensation, tenants', 203 ; for Dis
turbance Bill (1880), 279 ; Mill on,
229 ; referred to, 217, 242
Concealment of birth, Sir F. Pollock
on, 37
'Consideration,' 182, 190, 198
Conscience, standing legal, 95 ;
other people's, 175
Conscription, 217
Consols, 317
Contempt of court, 288
Contract, freedom of. See Freedom
Contract, 'the enemy,' 93; basis of
dealings, 128 ; enforceable or not,
141 ; boasted repudiation of, 142 ;
'forced' upon workmen, 146; re
ferred to, 152-154, 178, 187-199;
and land tenure, 201-213 ; implied,
207, 342 ; and Irish land legisla
tion, 299-301 ; and tithe, 313-318;
and relation between employer and
employed, 335-355 ; between land
lords and tenants, 356-358
Copyhold, Lord Hobhouse's Bill, Mr.
Waugh, etc., 327-329
Cordiality and civility, 95
Corrupt Practices Bill (1883), his
opinion invited, 96

376

INDEX

Cowper, Francis, seventh Earl, 287
Craft, an extinct, 11
Cranworth, Robert, first Baron, Chan
cellor, 21
Criminal Law, the object of the
English, 41-46
Crompton, Mr. Justice, 59 ; Mr.
Henry, 129
Crown, the, as landlord, 213, 214
Curtin's case, 292
Curtis, Mr. Charles, of Boston,
U.S.A., 25, 26
Customs duties, 184, note
D.
Daily News, the, 78
Davidson, Colonel C. H., 286 ; letters
to, 286, 289
Davis, Mrs. Bancroft, 281
Debts, 318; how paid, 329; non
liability for another's, 347
' Declaration of Rights,' Shelley's, 47 ;
by U.S. Congress, 197
Democracy, unmitigated, 118, 167-
169
Demurrers, 13
De Vesci, J. R. W., first Baron, and
Spelling Bee, 287
Digestion, per procuration, 35, 139
' Diligenter,' 17
' Diminished production ' controversy
(1879), 129, note
Dinner-table and dock acquaintances,
61
Discomfort, standard of, 87
Divorce Court, lesson from, 296
Dobbs, Mr., 325-327
Dock labourers' wages, in
' Doctrinaires,' 124, 162
' Doctrine of common employment '
fabulous, 343
Dorrien's Bank, 4, 6, 8
Dove, Patrick E., 245, note
'Drawing the line,' 160
Dred-Scott judgment, 26, note
Drink, 257-262 ; a Rejoinder, 264-274
Drinking and legislation, 144 ; and
taxation, 211; and rent-paying,
300
' Drowning element, a, ' 64
Druitt's trial, 2, 29, 32, 180, 368
Dumbness a blessing in disguise, 136
' Duplicity,' origin of term, 1 1
Duress, 197-199
Durham Sunday Closing Bill, 64,
'73

E.
'Economic morality,' 90, 182, 188,
228, 365
Economics v. Socialism. See British
Economist, the, and land tenure, 202 ;
and railway rates, 304-312 ; tribute
to Lord Salisbury, 312 ; and water
companies, 325
Economy, political. See Political
Edmunds, Christina, death sentence
on, 41
Education and ' ruling class,' 127,
note ; Act of 1870, 167, 168 ;
secondary, 179
Eight Hours Bill, demand for, pre
dicted, 113, 160, 171
Elasticity, Lord Bramwell's lack of,
123, 154
Elcho, Lord. See Wemyss and
March
Electric Lighting Act of 1880 con
demned, 135
Ellis, Sir Whittaker, Bart., M.P., 288
Employers' and workmen's opinions,
136; Liability Act of 1880, 144-
146, 342-346, 353-356; Act of
1897, 137, 195, 351, 373 ; Bill of
1878, 333-342
'Employers' Liability, The Law of,'
too long delayed, 60
Enclosure of Commons, 220-223
Enfield, school-days at, 5
Engineers and machinery, in, note
England and experiments in coercion,
147
English, 'ideas,' 160, 183-195; Mr.
Gladstone 's, 293
Entail, deplorable effect of cutting off,
272
Erie, Sir William, on Druitt's trial,
31, 32
Esher, William, first Viscount, 78,
195
' Estate,' extent of a subject's, 214
Ethics, referred to, 85, 89, 143-145,
154; and contract, 182-185, 188,
189, 228, note, 361, 363
Euclid, 85
Exchequer, Court of, 27
Expediency, in, 127

' F.,' Times letter, employers' liability,
339
Factory Acts and 'protection,' 143
Fair Trade, 130-132, 210, 211

INDEX

377

Farmers, 132, 145, 153, 165, 203-207,
243, 252 ; Irish, 279, 291 ; and rail
ways, 302-305 ; and tithe, 313-
321
Farrar, F. W., etc., Dean of Canter
bury, 263-275
Father, letter from his, 6
Fawcett, Henry, 140
Fed when not hungry, 139
'Feebleness,' 147, 358
Fees, 3 ; as Q.C., 21 ; retention of,
by absentee, 36
Feudal principles, 214; tenure, 227
Field, David Dudley, 372
Finance Act (1894) predicted, in,
373
Fine, an enormous, 65
' Fishmonger, not a,' 149
Fixtures, tenants', 203-207
Flintshire murder trial, 72
Food-supply and contract, 205 ; and
hares and rabbits, 356
Foreigners and us, 134
Forfeiture of leases, 201
Form, a, request for, 62
Fowler, Mr. William, 209, note
Frauds, Statute of, 34 ; encouraged,
147, 358
Free Trade, 18 ; and social problems,
86, 88 ; and ' orthodox ' school,
142 ; trilogy of, 158 ; isolated, 132 ;
Tories and, 162 ; test questions,
164, 165 ; and political bias, 168,
295, 361
Freedom of contract, 98 ; ' outrageous
invasion of,' 137, 351 ; limitations
of, 141 ; Bills annulling, 188, 189,
196-199 ; Times on, 201 ; 207, 276,
352-355 ; and Ground Game Act,
356 G.
Garrotters, sentences on, 28
Gee, Mr., and land tenure, 227
Geneva. See Arbitration
George III. on eligibility for trade,
George, Mr. Henry, 207, 208, 227-
245 ; replies to, 245, note ; Socialists
and, 246; in plain English, 241 ;
364 , , • ¦
German commentators and authorities,
185
Giants and pigmies, 102 ; legal, 372
Gladstone, Right Hon. W. E., etc.,
and economic reaction, 155-170;
and Collier episode, 156 ; Sir G.
Bramwell's opinion of, in 1880, 157 ;

and Plan of Campaign, 282 ; re
ferred to, 158-173, 283, 287, 291-
295, 338, 342, 346, 365
Goschen, Right Hon. George J., 140
Governing class, 121
Graceful letter, a, 290 ; tribute, 372
'Grandmotherly' leanings in 1873,
57, 58; 'legislation,' author of
phrase, 142
' Grant from the living God,' a, 241
Granville, George, second Earl, etc.,
on Geneva Arbitration, 54
Green, Professor T. H., 161, 188
Greene, Baron, precis of speech before,
280
Grenfell, Mr. Henry Riversdale, 288
Grimthorpe, Edmund, first Baron, 86,
note, 308
Ground, rents, taxation of, 277 ; game,
J45.356 ...
Guests, liability to, for injuries, 348
Gull, Sir William, on alcohol, 268
Gully, Right Hon. W. Court, etc.,
279
H. B. sketches, 121
Haldane, Mr. R. B., etc., on wisdom
of our neighbours, 195
Halsbury, Hardinge, first Earl, Chan
cellor, 29, 368
Hanbury, Mr. Robert and Mr. Edgar,
32, 33
Harcourt, Right Hon. Sir W., etc.,
51, 77, 174
Hardcastle, Mr. J. A., 213
Hares and Rabbits Bill (1880), 145,
356-359 [243i 244
Harrison, Mr. Frederic, 129, note,
Hatherley, William Page, first Baron,
Chancellor, as whipping-boy, 157
Heaven, a message from, 288
Heydon, Hon. L. F., M.L.C, etc.,
on Henry George, 247
Hillingdon, Charles, first Baron, 288
Holt, Sir John, L.C.J., strange over
sight of, 60
Home Office as Court of Appeal, 51
Home Rule, pestilence, the Defoe of,
95; Bill, 119; referred to, 172,
295 ; ' Handbook to Question ' and
'Truth about,' 289; American
Judge on, 281 ; House of Lords
and, 373
Homicidal mania, 43
Hops, carriage of, 308
House of Commons of 1880-1885, 171.
See Parliament

378

INDEX

Howard, Mr. James, and tithes, 315
Hunter, W. A., M.P., 189, note
Hutchinson v. York, etc., Railway,
335
Huxley, Professor T. H., letter from,
107 I.
'I. D.,' 279
Implied opinions, 129; duress, 198;
contract, 207, 341 ; ' terms,' 60,
335. 337, 34i, 347
Improvements, tenants', and contract,
137, 201-213
Increment, unearned, 211 -2 15, 218
Industrial Remuneration Conference,
questions and answers, 249-253
' Inevitablists,' 167
Injury to individuals, concern for,
147
in pari materia, 267
Inspector-mania, 138-147
'Intellectual Liberals,' their concep
tion of Cosmos, 124, 125
' Intelligence,' basing franchise on,
US
' Interest at the Bar,' 4
Interference with freedom, samples
of, 152; motive for, 255; when
justifiable, 357 ; effects of, 360
Intimidation, 2, 29, 32, 284; 'reason
able,' 369
Ireland and Irish, juries, 50 ; Local
Government Bill (1892), 100;
Church, 101, 170, note ; Land Bill
(1870), 133; Land Act (1881), 91,
145, 169, 173, 174, 299; ideas,
278 ; Jury Act, 280 ; Plan of Cam
paign, 282 ; Coercion, 291 ; Mr.
Parnell's Bill, 299; Defence Union
and pamphlet, 284-290 ; referred
to, 278-301 J-
Jackson, Sir H., M.P., letter to, 346-
352
Jealousy, professional, 283
Jervis, Sir John, L.C.J., 104
Jevons, Stanley, 139, 214, note
Judges, 2, 36, 40-45, 70, 83, 95, 160,
183-187, 192; and M.P.'s, 344,
note
Jurymen, 18 ; as critics, 71 ; Irish,
292 ; an easy way with, 345, note
fus (newspaper), letter to, on Passive
Obedience, 47
Jus, naturale, 184, 365 ; genii, civile,
90, 190

Justice, and law and order, 61 ; and
'reasonableness,' 149; a fanatic
about, 362 ; assorted samples of,
363, note ; his reading of, 365
Justinian, 180; the new Keltic, 284
K.
Kelly, Sir Fitzroy, 9
Kennedy, Mr. B. E., 16
Key of cellar, custody of, 64
'King, the,' as technical umpire, 192 ;
as land-grabber, 214, 225-227
Kleptomania, 43

Labouchere, Mr. H. D., etc., 241
Lady, a bright young, 28 1
Laissez Faire, pamphlet (1884), 139"
147 ; M. Molinari on, 164, note
Land, Irish, Act of 1870, 133, 209 ;
of 1881, 91, 145, 163, note, 174 ;
non-Irish Land Question, 200-247 ;
taxation and tenure of, 275-278 ;
Parnellite agitation, 281-293, 299-
301 ; Crown rights in, 214, 225 ;
nationalization, 138 ; line drawn
by Church and others, 160 ; Henry
George's campaign, 207, 227-247 ;
owners and railways, 303
Law (see also Common) and order,
60 ; English, most agreeable read
ing, 9 ; referred to, 3, 16, 19, 24,
29-60, 70-72 ; ' a logic of 353 ;
strict enforcement of, 44, 178-199,
370 ; List, tribute to, 69 ; powerless,
286, 292 ; Object of the English
Criminal, 41 ; 370-372
Lawson, Sir W. , Bart. , and Anglican
hierarchy, 56, note
League, Land and National. See
Ireland
Leasehold Enfranchisement, pamphlet
(1885), extracts from, 276
Leases, forfeiture of , 201
Lecky, W. E. H. , on ' governing
class,' 121
Legal ingenuity, 352
Legislation, and judiciary, 39 ; prob
able working-class, 1 1 1 - 1 14 ; recent
Liberal, condemned, 148 ; warn
ings about, from Ireland, 169, 173,
174 ; and latter-day beliefs, 85 :
effects of, on agriculture, 202-210 ;
and on railways, 302-312, 316, 321,
322 ; and investors, 331, note ; and
masters and servants, 333, 343-345 ;
and national character, 360

INDEX

379

Legislative nullity, a, 256
Liability, primary rule governing,
347; limited, 329-331; unlimited,
origin of, 330 ; Mr. R. Lowe and,
331 ; Bankers' Magazine and, 331,
note. See Employers
Liberal (and Liberals), converted at
an early age, 8, 101, 102 ; the
awakened conscience, 133 ; pro
testers, 155, 161, 163, note; philo
sophic, 167-169 ; majority in 1880-
1885, 174, 175 ; Unionists, 295 ;
terms offered by, 354
Liberty, 166, 167, 186, 187, 199,
254 ; of mind and freedom of will,
30, 368 ; and Property Defence
League, 57, note, speech at in
augural meeting, 134, referred to,
82, 133, 139, 172, 173, 255
Licensing laws part of police law,
143, 191, note ; amending Bill,
.373
Life peerages, 25, 372
Litigation unnecessary, 207, 352
' Logic of law, a,' 353
Long vacation, 35
Lords, House of, 95 ; its monopoly
of virtue, 97 ; appreciated in Phila
delphia, 109 ; resuscitation of, 172 ;
freak of, 173 ; 370, 373
Lowe, Right Hon. R., etc., murder
and manslaughter, 38 ; and Judges'
duties, 41 ; referred to, 167, 331,
335-339 J le"er from, 338
M.
M.P.'s and working men, 123; as
fishmongers and carriers, 154 ; and
Judges, 344, note
Maamtrasna compacts,' 98 ; debate,
1885, 282
McBlank, Mr., 224-226
Macdonald, A., M.P., 129, note, 334,
342
Macdonald, Sir John A., 371
Macdonell, Mr. John, Master of
Supreme Court, 15
Machinery and enlightenment, III,
U3
McNaghten's case, responsibility of
criminals, 42
'Mad-doctors,' 43
Magistrate, a, in every county, 99
Mahomet and malt liquor, 266
Maidstone Assize, first brief there,
29; 73-76
Maine, Sir H., 1S9, 223

Mallock, Mr. W. H., 245, note
Malthusianism, 56, 123, 233
Manchester School, 162, 166
Mania, criminal, 43, 44
Mansfield, William, first Earl of,
L.C.J., 180
Marriage, early, 8 ; imprudent, dis
couraged, 56
Martin, Sir Samuel, Baron of the
Exchequer, 279, 293
Mastiffs, favourite, 32
May, Dr., school at Enfield, 6, 7
Mellor, Sir John, friendly warning
from, 72
Metaphysics, and physics, 35 ; his
distaste for, 180 ; and Common
Law, 193
Microbes, Sir F. Pollock on, 276
Mildness, the new, 84, 85
Mill, John Stuart, 123, 211, 216-220,
229, 231
Mines Regulation Act, 144, 146, 256
' Minimum wage,' 111-113
Mischievous opinions, 117-119
Moffat, Robert Scott, reply to Henry
George, 245, note
Molinari, M., 164
Money-lenders, 57 ; habits of, 137
Monmouth collier indicted, 43
' Monopoly,' misuse of word, 136, 216,
217
Morbid craving, 43
More, Sir Thomas, 185
Morley, Right Hon. John, 129, note,
215
Morning Herald, letter to, i860, 1 10-
118
Mother, Lord Bramwell's 4, 7
Municipal Whiteleys, 136, 146 ; as
land-owners, 218
Murder, and manslaughter, 37, 38 ;
trial, 29, 41, 73 ; and aphorism, 61 ;
a free hand for, 291, 292, 297
Music, fondness for, 59
N.
' Nation, wronging a,' 263
Nationalization (see Land), of sun
dries, 138 ; Trade Union Congress
and, 254, 344
National League. See Parnellism
'Nature,' as landlord, 219, 229; 'a
gift of,' 229
'Natural right,' 219, 220 ; to a box at
the opera, 252 ; to compensation for
injuries, 336
Navvy, tribute to a Judge, 3

380

INDEX

Negligence. See Employers
Newmarch, Professor, 87
Nineteenth Century Review, preface ;
Isolated Free Trade, 132 ; Drink,
republished, 256 ; Drink, a Re
joinder, 263-275 ; Leasehold En
franchisement, 275
Norwich Trade Union Congress,
resolution at, 344 O.
O'Hagan, Baron, 279
One measure for rich and poor, 153,
364
Ordnance Survey map, faith in, 177
Orthodoxy, suspected, 103 ; economic,
123-129, 140-142, 162-175
' Outside world, of the,' meaning of
term, 348
Over-production, 129, note
Oxford, Samuel, Bishop of, 109

Paget, Sir James, letter from, 258
Palmerston, Viscount, 121, 169
Pamphlets : Masters' Liability (1880),
346 ; Liberty (1882), reprint of
address, 134-139; Nationalization
of Land (1883), 229 ; Laissez Faire
(1883), 139-147; Drink (1885),
256 ; Industrial Remuneration
(1884), 249 ; Leasehold Enfran
chisement (1885), 275 ; extracts
from Economics v. Socialism
(1888), see British
Parke, Sir James, Baron of Ex
chequer (Baron Wensleydale), 20,
22, 25, 26
Parliament, of the working classes,
m-118; and Judges, 38-41; a
committee on 'forms,' 63; 'inter
ference' by, 152, 153, note, 168,
201 ; and agriculture, 209, 210 ;
and railways, 302-304, 311 ; and
tithe, 313
Parnell and Parnellism referred to, 95,
98, 171, 281-301 ; Bill of 1886, 299.
See also Ireland and Land
Partnership, commission on law of,
21, 33°
Party, politics, no, 122, 123; leader,
a, 296
Passive Obedience, 47
'Payment of wages,' 138, 146, 254,
256
Peek v. North Staffordshire Railway
Company, ' wrongly decided,' 149

Peel, Sir Robert, and Protectionists,
Pembroke and Montgomery, George,
thirteenth Earl of, 286-288
Penal laws, 173
Pessimists, 359
Petition of Right, 184, 224
' Pickel - haube ' school, 186, 189,
note
Picketers (see Druitt), debate on, 367-
369
Plain Whig principles, 94, 101, 155;
reaction against, 1.55-175
Plan of Campaign, Mr. Gladstone and
the, 282
Playfair, Lord, on Fair Trade, ditto
rents, 132
' Please govern me as little as possible,'
140
Poland, Sir Harry Bodkin, 29
Political prisoners, 47, 297-299
Political economy, changed estimate
of, 85-91 ; club, 123 ; ' an awful
shock,' 127; 140, 155, 161 ; Tories
and, 162 ; governing principles of,
164
Political forms, indifference to, 100
Pollock, Sir F., first Baronet, Chief
Baron, letters from, 10, 26, 33-38,
96, 126, 169, 170, 276 ; on masters'
liability, 335
Pollock and Maitland, ' History of
English Law,' etc., 188
' Poor man,' the, his title to land,
219, 223 ; poor-law, 227, 361
Pope, Mr. Buckingham, 308
Post-Office cases, 34
Potter, Mr. G., 129, note
Powell, Sir G. Baden, etc., 289, 290
Predictions, striking, in i860, no
Prejudices, representation of, 120 ; in
favour of his own brand, 283
Priestley v. Fowler, 334, 335, 338
Primogeniture, 251
Prisoner's evidence, 99, 100
Private property in land, 238, 251
'Progress and Poverty.' See George
and Nationalization
Promoters, Bankers' Magazine on,
331, note
' Prophet, the great, of Arabia,' 266
'Protection' and Dukes, 115; by
'State' against competition, 165;
and democracies, 169 ; of in
vestors, 331, note. See Free Trade
Public wrongs, 263
Pulling, Serjeant, Q.C., 66-68

INDEX

381

Punishment and threat, 41, 49
Puritan jurists, 185
Putty, celestial, 228, note

'Qui facit per aliam,' etc., 334, 339,
342, 348 R.
Rabbi Oved the Galilean, 269, 270
Radicalism, 167, 168, 172
Railway companies, advice to their
servants, 55-58 ; as bargainers, 149 ;
as 'rich men,' 153 ; as monopolists,
216; Parliament and, 302-311;
check to development of, 304, 311 ;
liability to passengers, 337, 348 ; to
servants and to drovers, 352
Railway rates, 302-311
' Reasonable,' significance of word,
195
Rebellion, 46, 47, 286, 298
' Rechtsverhaltniss,' 189, note, 191
Redistribution Bill, unswallowable,
97
' Reversions,' 202
Rich, the, 87 ; by implication, 153 ;
and land tenure, 246 ; and parks
and squares, 272
Riot's case, 46
'Right-mindedness,' 363. See
' Rechtsverhaltniss '
'Rights,' origin of, 220 ; spurious, 252
'Robbery,' 173, 219, 237, 241, 242,
329
Rochester, A. W. Thorold, Bishop of,
and Socialists, 109
Roman Law, 186-191, 195; and hire
of land, 205, 206 ; and master and
servant, 335, 339
Rosebery, Archibald, fifth Earl of,
etc., prediction about, 134; grace
ful tribute from, 372
Rousseau and contract, 182, 183, 192
Royal Commissions, member of, 21,
27, 52, 327
Russell of Killowen, Charles, first
Baron, L.C.J., 279
Russia, war with, quaint effect of,
37' S.
Salisbury, Robert Arthur, third Mar
quis of, etc., on freedom of contract,
98 ; and Free Trade, 162, 164 ;
and Arrears Bill of 1882, 172 ; and
' interference ' ( by Board of Trade ?),
134 ; and 'evading force,' 312 ; on
' law,' 342, note, 373

Say, M. Leon, 163
Scaevola, 187, 205
' Scarlett's holydays,' 35
School, 6, 7, 28 ; letter, 7; of jurists
obsolete, 20
Scotsman, the, 130, note
Scottish railway strike, 367
Scourfield, Sir John, 142
Selborne, Roundell, first Earl of, 18,
54
Sentences, object of, 33 ; how arrived
at, 71 ;_ capital, 37, 51
Serjeants' Inn, 64-70
'Servant,' what constitutes a, 348
Shaftesbury, Anthony, seventh Earl
of, etc., 108, 255; Cropley, sixth
Earl, 322
Sharp v. Wakefield, 64, 373
Shelley, Percy Bysshe, 47, 370
Sherbrooke, Viscount. See Lowe
Sheriff, a hapless, 15
Sidgwick, Theodore, of New York,
27
Siemens, Sir W., and invention, 242
Sin, in fee simple, 272
Slaves, 26 ; and contract, 128
Smart, Dr. W., LL.D., on celestial
economics, 228, note
Smith, Adam, 162, 184, 185, 206
Smith, Right Hon. W. H., etc., 96
Social Science Congress, 139; 'jus
tice,' 363 ; 'problems,' 228, note
Socialism, ' some kind of,' and
Socialists, referred to, 21, 87, 88,
91, 138, 158, 159, 163, note, 188,
353
Society, its interest in contract, 181
South-Eastern Railway meetings, 55,
61
' Special pleading,' account of, 10-15
Spencer, John, fifth Earl, tribute to
(in 1885), 98
Spencer, Herbert, 128 ; splendid
isolation, 140
Standard gauge, 161, 365
Stanhope, Arthur, sixth Earl, etc.,
254, 372
'State, the,' owner of all things, 213,
214 ; and of French railways, 215 ;
land, too, 224 ; ' management '
by, 251-253 ; compulsion by, 226;
confers title to property ; its dis
pensing power, 316
' State in relation to labour,' 139,
214, note
Stephen, Sir Fitzjames, on sentences,
49

382

INDEX

Stock Exchange, 'law ' of procedure, 16
' Stranger, a, ' 348
Strikes, 29, 367
Suffrage, universal, 116
Sullivan, Sir E., 'Isolated Free
Trade,' 132
Sunday opening of museums, 108 ;
closing, see Durham T.
Tacitus on source of 'English ideas,'
160
Taxation, penal, 114, 171 ; of ground
rents, 277, 278
Temper, a peremptory, 72 ; asks
pardon for, 78
Tenants' improvements, 137, 152,
note ; and landlords, 213 ; and
Roman law, 206. See Land, Con
tract, Tithe
' Terrors, the law's,' 49
Thorold, Bishop, letter from, 109
'Threat, the law's,' 43
Times, The, preface ; referred to, 22,
24, 32, 65, 72, 76, 96, 187, 223,
256 ; leader, 274 ; 345
Tithe, 98 ; agitation and correspon
dence, 312-321
Tories, the, ingrained suspicion of,
101 ; hereditary economic ideas,
161; 'Young England,' 162; and
Burke, 95, 162 ; 163, note ; and
freedom of contract, 187 ; ' still the
Tories,' 282
Torrens Act,' 323-326
Toynbee, Arnold, and cab-fares, 197,
note
Trade Unions, legislative ideas, 112-
114; Druitt's case, 29-32; and
Ireedom of contract, 334 ; and
employers' liability, 353, 354;
'history of,' 2 ; Congress, 254, 344 ;
a plea for, 367
Trafalgar Square riot, November,
1887, 297
Trevelyan, Sir Charles, letter from,
173,'note
Trevelyan, Sir G. O., touching re
mark about, 102
Truck Acts, 142, 206
Tupper, Sir Charles, Bart., etc., 371

U.
Ulster, 286, 287
Unearned Increment, 211-215, 218
Unit, wage-earning, 86
United States. See American
Universities, legal, 67-69 ; and Social
istic permeation, 195
Usury, 33 ; aggravated by Bills of Sale
Act (1882), 137 ; farmers and, 210
Utterly regardless of law , 157

Vacations 35
' Various reasons ' for defending the
Church, 109
1 Vaus,' thirteen, 269 W.
Wages, 1 1 1- 1 13; not payable in
pastrycook shops, 138 ; Bill, 254,
256, 350, 351
Waite, M. R., C.J. of U.S. Supreme
Court, 281
Wales, anti-tithe agitation in, 313
Wall, Governor, 35
Wallace, Dr. R. B., M.P., 188, note
Waste of manors, 221
Water companies, attack on, and
correspondence, 322-327
Watkin-Williams, Mr. Justice, 99
Watson, J. S., death sentence on, 41
Webb, Mr. Sidney, 345, 346
Welsh circuit, 34, 59 [313
Welshers, ethics for, 203 ; and martyrs,
Wemyss and March, Francis, ninth
Earl of, etc., 86, note ; 133, 367
Wensleydak, Baron. See Parke
Westminster, Hugh, first Duke of,
etc., 238, 288
Wheat, ' five shillings duty o»,' 132 ;
Sir W. Harcourt on price of, 174
Whigs, the, 101, no, 118, 121, 170
Whitworth, Mr. B., M.P., reminis
cences of Waterloo year, 61
Widows, pensions for, 241
Willes, Mr. Justice, 32, 293
Winsor, Charlotte, respited, 36
Witnesses, woes of, 49, 176
Wobblers, distinguished, 88
Woking Cemetery, 373 [122, 342-355
Working classes, 89, 92, 1 1 1 - 1 1 5, 117,

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