Page:Harvard Law Review Volume 10.djvu/395

LORD BOW EN'S JUDICIAL CHARACTERISTICS, 3^9 defined by statute? It would be a duty that had no Hmits, except the benevolence of a jury exercised at the expense of the pockets of other people." The truth is, that Lord Bowen's unusual intellectual acquire- ments were well balanced by good sense. He was continually- using the terms common law and common sense as equivalents; he likened the common law to an '* arsenal of sound common sense principles." ^ No end of examples of this characteristic might be given. He had a marked aversion to artificial and technical con- struction. In speaking of the standard to be used in weighing the evidence in a case involving the question whether a certain hos- pital was an ** annoyance " to the inhabitants of neighboring houses within the meaning of a covenant in a building lease, he said ; — " * Annoyance ' is a wider term than nuisance, and if you find a thing which really troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house, — if you find there is anything which dis- turbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment or discom- fort. You must take sensible people ; you must not take fanciful people on the one side or skilled people on the other ; and that is the key as it seems to me of this case. Doctors may be able to say, and, for any- thing I know, to say with certainty, that there is no sort of danger from this hospital to the surrounding neighborhood. But the fact that some doctors think there is, makes it evident at all events that it is not a very unreasonable thing for persons of ordinary apprehension to be troubled in their minds about it. And if it is not an unreasonable thing for any ordinary person who lives in the neighborhood to be troubled in his mind by the apprehension of such risk, it seems to me that there is danger of annoyance, though there may not be a nuisance." ^ Along with his singular power of expression Lord Bowen dis- played real imagination. Imagination, after all, is for the most part simply depth and breadth of insight; and so far from being detrimental to judicial thought, surely no quality could be more desirable in the administration of law than the intellectual and imaginative insight which goes to the heart of things and expresses 1 Mogul Steamship Co. v. McGregor, 23 Q. B. D. 611. 2 Tod-Heatly v. Benham, 40 Ch. D. 97. See also Jackson v. Barry Ry. Co., [1S93J I Ch. 238, and Miller v. Hancock, [1893] 2 Q. B. 180. 49