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LAW MAGAZINE AND REVIEW.
No. CCCXVIII.-NOVEMBER, 1900.
I. IN MEMORIAM: LORD RUSSELL CHIEF JUSTICE OF
UT twenty months have passed since the death of Lord Herschell, and now we have to mourn the loss of that other great lawyer whose career, beginning, like that of the late ex-Chancellor, on the Northern Circuit some forty years ago, culminated in the Lord Chief Justiceship of England, and recently came-as did that of his distinguished rival and contemporary-to a sudden and premature close.
Lord Russell of Killowen was so many-sided a man, and threw himself with so much energy into so many kinds of work and play, that there is hardly one of his friends whose reminiscences of him could be said to cover the whole field of his life only a syndicate could adequately perform that task. My own recollections of him date back to the time when he was still a barrister of one year's standing. He joined the Northern Circuit at Liverpool in 1859, and until he took silk he seldom went to other circuit towns, but he regularly attended the sittings of the Liverpool Court of Passage, then presided over by Mr. Edward James, the leader of the Circuit. In that court he at once jumped into business, and when its two leaders, Brett (afterwards
Viscount Esher) and J. B. Aspinall were removed-the fornier by taking silk in 1861, and the latter by accepting the Recordership of Liverpool a little later-Russell speedily took the lead of the Court and greatly increased his junior practice in Liverpool. He always had the highest admiration of the judicial merits of Edward James, and used to say that those who had had the advantage of practising under him during the first years of their professional life, had enjoyed an extraordinary piece of good fortune for which they ought to be ever grateful. Early in 1872 Russell and Herschell, after an unusually short probation without the Bar, took silk, and were sworn on the same day-a step which to some seemed bold at the time, but which, as we now know, in either case led on to fortune.
In the days before the Judicature Act, when all the judges left town together twice a year for circuit, and returned together on the first day of the next term, when Equity Courts tried equity cases only, and when there was no Court of Appeal-the Circuit Bar and the Circuit Mess were more important and engrossing institutions than they are now. Russell, though a fierce fighter in court, doffed his combativeness with his robes, and was a genial and clubable, and, in those days, a frequent attendant at the mess-table. There are not a few of those old associates of his who have reason at this day to be grateful to him for his exertions in forwarding their interests when they were seeking some deserved promotion in their profession.
I said that Lord Russell's career came to a premature close because, though his years verged upon three score and ten, he had always been so remarkable for strength and endurance that time seemed to have made as little impression upon his physical powers as it had upon those of his mind. He had always greatly believed in the co-ordination of physical and mental power, perhaps
because it was the condition of being in which he lived and upon which he relied, and if one were compelled to sum up his principal characteristics in a single adjective, one would describe him as essentially a strong man. And he never spared his strength. Whatever he did, he did it with all the force of his masterful will and vigorous mind and body. At the Bar he had the valuable, but by no means common, faculty of using other men's work, and he could, if need be, open a complicated case with no preparation beyond the notes and suggestions of a capable junior. But that was not his method. He took immense pains with his work and, loving victory, strove hard to secure it. He spared no time or trouble to win a verdict when there was any chance of success, but if he saw no means of escaping defeat he was not a difficult man to settle with. He was not a born orator, such as were Erskine and Cockburn, but he cultivated the art of eloquence all his life with ambition, with industry, and with success, and was always a most powerful speaker upon facts. His great and well-earned reputation as an advocate was the result of a combination of many qualities and aptitudes. He had a clear foresight of the point at which the main stress of the battle would be felt, and the faculty of bringing all his weight to bear there, without too much neglecting the other parts of the field. It is superfluous to say that he was an accomplished master of the art of cross-examination, though usually he conveyed to the onlooker the impression that it was rather by force than by subtlety that he broke down or exposed the fraudulent or uncandid witness. Those who have heard the present Lord Brampton crossexamine will remember with what friendly and persuasive tones he would invite and seduce the witness into the path which led to a ruinous or a ridiculous catastrophe. Lord Russell's method was different, and the untruthful witness who faced him was seldom left long in doubt as to his
hostile and aggressive intentions. This power of placing a witness in an unfavourable view before a jury was indeed so great that there were occasions 'cum vix justus sit securus'; but that is one of the hazards of all powerful crossexamination even by the most honourable and high-minded of advocates;-a rare disadvantage, to be set against its many advantages. Another characteristic of him as an advocate was the audacity with which, in a difficult situation, he would venture upon an apparently dangerous line of crossexamination, and pursue it with unflinching courage, and often with signal success. But this was a calculated recklessness, which in less skilful hands would lead to destruction, and is not to be rashly imitated.
Lord Russell was much too clear-headed a man to forget, when he took his seat on the bench, that those who sat opposite to him would watch with keen eyes for any traces in the judge, of the methods and characteristics of the famous advocate, for signs of impatience, or of a too imperious control; and he kept careful, and upon the whole, successful watch over himself. If at times he showed symptoms of restlessness it was certainly not because he desired to take a side, or to display from the judgment seat his old cunning in advocacy. He was quite above such vanities; but the same strenuous nature which gave him strength to bear down opposition at the Bar, would occasionally manifest itself on the bench if he thought that time was being wasted, or an unfair or frivolous point was being pressed.
Lord Russell was, as I have said, a many-sided man. Fate, and the necessity of carving out his own fortune, made him a lawyer. Yet had he inherited an income such as the exercise of his abilities at the Bar enabled him to command, we should never have known his capabilities as an advocate or a judge, and his ambition would have been to lead a party in the House of Commons, and to win the
Derby; and so great was his force of character that possibly he would have done both. Would he have been happier? I doubt it. The pleasure of creating a great position was probably to him greater than would have been the pleasure of inheriting it; and, while rising to the head of his profession by hard work and ability, he was not altogether debarred from those two recreations in which he took delight-politics and sport. One other recreation there was dearer to him than either, though of his full and busy life it could have but too small a part-the restful days at Tadworth in the midst of a family for which he had the tenderest affection, and among those quiet rural surroundings in which, his labours ended, he might have hoped to spend some years of peaceful old age. But to work to the last, and to die in harness, was perhaps for him the more fitting end.
W. C. G.
II. THE DEVELOPMENT OF PATENT LAW.
'HE equitable adjustment between the rights of an inventor to a beneficial interest in the results of his discovery, and the rights of the public to a reasonable participation in the general advance in the knowledge of the community consequent upon the discovery, presents a problem of no little intricacy to the Legislature.
The Aristotelian doctrine that virtue lies in the mean between two extremes is admirably illustrated. On the one hand, if too ample a protection be afforded to the inventor he becomes a monopolist, and the public suffer; on the other hand, if an insufficient degree of legal security be provided there is little inducement to the inventor to make his discovery known, and the withholding of his special knowledge is obviously detrimental to public interests.
To delimit the respective claims of the inventor and the