A Century of English Judicature. It must be confessed that he sometimes went to the other extreme in his desire to do full justice in particular cases. The law of England/' he once said, "is not a science. It is the practical application of the rule of right and wrong to the particular case before the court, and the canon of law is that that rule should be adopted and applied to the case which people of honor, candor and fair ness in the position of the two parties would apply in respect of the matter in hand. In the pursuit of this laudable end he was apt to overlook the necessity for fixed principles. He was independent to a fault, and fre quently differed from his colleagues. When a precedent stood in his way he did not hesitate to pass it by. "There is no such thing in law," he said, "as a rule which says that the court shall determine that to be true which the court believes and knows to be untrue." 1 All his learning and experience had been in common law, and like most of his colleagues in Westminster Hall he was not above an occasional sneer at equity. But in the practical administration of justice as a judge of appeal he was, perhaps, next to Bowen, the common law judge who dis played least bigotry in favor of common law technicalities as opposed to equity. Esher was destitute of any graces of liter ary style. His opinions are sometimes loose and discursive in the extreme. Yet he often presents a point with admirable brevity and force; as, for instance, in Munster v Lamb, where a lawyer has been sued for words used in the conduct of a case in court : "Tt has been contended that as a person defamed has, prima facie, a cause of action, the person defaming must produce either some statute or some previous decision directly in point which will justify his conduct. I cannot agree with that argu ment. The common law does not consist of particular cases decided upon particular facts: it consists of a number of principles, which are recognized as having existed 1 He sometimes had the gratification of having his minority views adopted on appeal, as in the Vagliano case, Turner v. Mersey Docks Company, and Niboyet v. Niboyet.
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during the whole time and course of the common law. The judges cannot make new law by new decisions; they do not assume power of that kind; they only endeavor to declare what the common law is and has been from the time when it first existed. But inasmuch as new1 circumstances and new complications of fact, and even new facts are constantly arising, the judges are obliged to apply to them what they consider to have been the common law during the whole course of its existence, and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts." But, however little his style may be admired, his opinions in substance are in variably interesting, suggestive and strong.1 Under the service of Lord Esher as Master of the Rolls his principal associates were Lindley (1881-99) and Fry (1883-92) in equity, and Bowen (1882-94) and A. L. Smith (1892-1900) in common law. After a laborious career at the chancery 1 The following cases will give an accurate idea of his great labors: Le Lièvre ». Gould (1893), I Q. B. 491! Johnstone v. Milling, 16 Q. B. D. 460; The Bernina, 12 I'. П., 58; Mitchell v. Darley Main Colliery, 14 Q. B. D. 1 25; Bowen v. Hall, 6 do. 333; Randall v. Newson, 2 do. IO2; Mogul Steamship Co. v. McGregor, 23 do. 598; Johnson v. Roylton, 7 do. 438; Harrison v. Duke of Rutland (181)3), i Q. B. 142; Niboyet v. Niboyet. 4 P. D. i; Currie v. Misa, ю Ex. 153; R. v. Judge of the City of London Court, 66 L. T. 135; The Gas Float Whitton, 65 L. J., P. 17; Dawkins -•. Autrobus, 17 Ch. D. 615; Angus v. Dalton, 6 App. Cas. 779; Drew v. N11 n n, 4 Q. B. D. 661; R. v. Keyn, 2 Ex. D. 63; R. r-. Bunn, 12 Cox Cr. Cas. 338; Brunsden v. Ilumphrev, 14 Q. B. D. 141; Thomas v. Quartermaine, 18 do. 685; Finlay v. Chimey, 20 do. 494; Merivale г: Carson, 20 do. 275; Henty v. Capital & Counties Bank, 7 Q. B. D. 174; Mackonochie v. Penrance, 4 do. 697; Abrath f. North Eastern Ry., n do. 440; Sewell v. Burdick, 13 do. 159; Rankin i>. Potter, 6 E. & I. App. 83; Hollins r. Fowier, 7 do. 762; The Parlement Belge, 5 P. D. 197; Bridges v. No. London Ry., 7 II. L. Cas. 213; Bank of England v. Vagliano, 6 1 L. T. 420; Medawar v. Grand Hotel Co., 64 do. 851; R. f. Barnado, 64 do. 73; Castillian v. Preston, 4p do. 29; Ballard v. Tomlinson, 52 do. 952; The Pondita, 51 do. 849; Macdougall v. Knight, 55 do. 274; The Moorcock, 60 do. 654; Searles т. Scarlett, 66 do. 837; Campania de Mocambique v. British So. Africa Co., 66 do. 773; South HettorCoal Co. v. News Asso., 63 do. 293; Meux 7-1. Great Eastern Ry., 64 do. 6^7; Wakelin v. London & South Western Ry., 65 do. 224; Bridges т. North London Ry., 7 H. L. Cas. 213; Selon v. Lafone, 57 do. 547; Walter r. Everard,f>5 ¿0.443; Salmon г'. Warner, 65 do. 132; Cleaver v. Mutual Life Asso., 66 do. 220; Royal Acquarium v. Parkinson, 66 do. 513; Turton v. Turton, 61 do. 571.
