LORD BOWEN'S JUDICIAL CHARACTERISTICS. 365 Finally, in addition to the characteristics to which I have ad- verted, which Lord Bowen shared in degree with his contemporaries, in his knowledge of legal history and mastery in the application of the doctrine of evolution to legal and political philosophy he was unique. '* The only reasonable and the only satisfactory way of dealing with English law," he said in an address to law stu- dents, is to bring to bear upon it the historical method. Mere legal terminology may seem a dead thing. Mix history with it, and it clothes itself with life." In the application of this method he treated law and legal history with an acuteness and sympathetic grasp which indeed vitalize his conclusions. English law con- sists of two well defined elements, the rational or scientific, and the historical, and many errors and much confusion in the ad- ministration of the law have been due to an attempt to give a rational or scientific basis to doctrines which owe their origin to historical accidents.^ A brief illustration of Lord Bowen's use of this method is the personalis moritur cum persona; Dalton v. Angus, 6 App. Cas, 779, on the right to subjacent support; Carlill v. Carbolic Smoke Ball Co., [1893] ^ Q- ^^- 256, on the essential requisites to the formation of a contract; Cochrane v. Moore, 25 Q. B. D. 57, on the vexed question of the passing of property by voluntary gift ; Smith v. Land & House Property Corporation, 28 Ch. D. 7, on actionable misrepresentation ; In re Hodgson, 31 Ch. D. 177, on the rights in equity of creditors of joint debtors; Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. 674, on malicious prosecution as a cause of action ; Brunsden v. Humphrey, 14 Q. B. D. 141, and Mitchell v. Darley Main Colliery Co., 14 Q. B. D. 125, on the doctrine oiresjudicatce; Jacobs v. Credit Lyonnaise, 12 Q.B. D. 598, on the lex loci contractus and vis major ; Johnstone v. Milling, 16 Q. B. D. 460, on the limits of repudiation as a breach of contract; Merivale v. Carson, 20 Q. B. D. 275, on the distinction between fair public comment and privileged communications in the law of libel ; Newbigging v. Adam, 34 Ch. D. 582, on relief in equity in cases of fraud and misrepresentation; Angus v. Clifford, [1891] 2 Ch. 449, on actionable misrep- resentation; AUcard v. Skinner, 36 Ch. D. 145, on undue influence; Speight v. Gaunt, 22 Ch. D. 727, on the duties of trustees; Hammond v. Bussey, 20 Q. B. D. 93, apply- ing the doctrine of Hadley v. Baxendale, 9 Ex. 341 ; Castellian v. Preston, 11 Q. B. 1). 397, on the recovery under fire insurance policies; Steinman v. Angier Line, [1891] I Q. B. 619, on recovery under a bill of lading for loss by theft; Svensden v. Wallace, 13 Q. B. D. 69, on the scope of general average contribution ; Abrath v. Northeastern Ry. Co., II Q. B. D. 440, on the nature of the burden of proof; Hutton v. West Cork Ry. Co., 23 Ch. D. 654, on the corporate power to remunerate directors for past ser- vices; Baroness Wenlock v. River Dee Co., 36 Ch. D. 684, on the limits of the corpo- rate capacity to contract; In re Portuguese Consolidated Copper Mines, 45 Ch. D. t6, on the doctrine of ratification ; British Mutual Banking Co. v. Charnwood Forest Ry. Co., 18 Q. B. D. 714, on liability for fraudulent acts of an agent. 1 As an indication of the value of the historical method in controverted questions, compare Lord Cairns's opinion in Fletcher v. Rylands, L. R. 3 H. L. 330, with that of Mr. Justice Doe in Brown v. Collins, 53 N. IL 442.
