Page:Harvard Law Review Volume 10.djvu/379

LORD BOWEN'S JUDICIAL CHARACTERISTICS. 353 one sixth of Lord Bacon's plan to simplify the law — ** cases reported with too great prolixity to have their tautologies and impertinences cut off" — were carried into effect, it would make short work of the bulk of contemporary reports. When we turn, now, to the records and remains by which pos- terity must judge Lord Bowen, their meagreness is disappointing. It fell to Lord Bowen's lot to be sacrificed for many years to the minotaur of professional practice under conditions which broke his health and frittered away his powers in such ephemeral work as unmasking the claimant for the Tichborne estate. He came, therefore, into the most congenial sphere which fate had ordained for him, a victim to physical sufferings which caused him to be frequently absent from the Court of Appeal. I doubt whether he heard more than five hundred cases during his eleven years' ser- vice. Even in these cases it is possible to convey only an imperfect idea of his service, for much of it was impersonal. In accordance with the custom of the Court of Appeal, the Master of the Rolls, who is the presiding judge, or, in his absence, the senior Lord Justice, deHvers the opinion of the court. The other Lords Jus- tices in most cases content themselves, if they agree, with simple affirmance, or at most a short supplementary opinion. In prob- ably one half of the cases in which Lord Bowen sat, therefore, he added nothing beyond his simple assent; for during his whole tenure Esher was the 'spokesman in common law appeals, and Lord Justice Lindley in chancery appeals. Until 1890 he was also junior to Lord Justice Cotton. It appears to be the exception rather than the rule in the Court of Appeal to reserve judgment; but occasionally, when this is done, one of the Justices prepares and delivers, after our method, a written opinion for the court. Many of Lord Bowen's most brilliant opinions were given under such circumstances. During his whole service, however, he delivered the judgment of the court in this way only about twenty times. Furthermore, many of the cases in which he briefly adds his own views are cases where the judgment of the lower court is reversed, on which occasions, in accordance with a polite custom of which Lord Bowen was scrupulously observant, all the judges express their views to a greater or less extent. So that there are no more than one hundred and fifty cases in the reports in which Lord Bowen formulates an independent and comprehensive expression of his own views. The most obvious characteristic of Lord Bowen's opinions is the 47