670
The Green Bag
There are two sides to our common law courts. One side deals with the loosening of legal knots and the other
with the loosening of human knots. The issues of one arise out of commercial transactions and contracts; the issues of the other out of slanders, libels, and torts. If you wished to see the late Lord Blackburn at his best, you would have visited his court during a legal argument without a jury; if you desired
and in his summing up directs the jury clearly, but never in an overbearing manner. He knows the difierence between riding on the snaflle rein, and needlessly using the curb. There is another aspect of the Eng
lish law which should be briefly referred to. England, unlike France, possesses no code. Certain branches of English
law have been codified by four statutes, viz. the Bills of Exchange Act, 1882;
to see Mr. Justice Darling at his best, you would visit his court when witnesses
the Partnership Act, 1890; the Sale of Goods Act, 1893; and the Marine
were giving evidence in a libel, slander, or running-down case. It is a curious fact that the average layman, on hearing that A has said
as these branches are, they are but four streams which feed the immense
that B has had a child before her marriage, utters a horrified exclamation. It does not occur to him to require convincing evidence that A ever made
such a. statement. Unfortunately a jury occasionally take the bit in their mouth, and seem to fix the measure of damages first and to consider the
strength of the plaintiff's evidence next. There can be no doubt that nature made Mr. Justice Darling a defendant’s judge. His mental bent is to look with healthy scepticism on the statements of a plaintifi who has brought an action for compensation for alleged injuries against a railway or omnibus company. Every lawyer knows What a cloud of perjurers often darkens the court on the hearing of such a case. It requires all the acuteness of a judge and all his tact with the jury to present the com
Insurance Act, 1906.
But important
ocean of English litigation.
The greater
part of English law remains uncodified, and a great part of English law is as much judge-made today as in the days of Lord Chief Justice Holt. It neces sarily follows that while a careful and
painstaking man might prove an ex cellent mouthpiece of the Napoleonic Code, much more than an ability to take pains, important as that is, is required of a man who aspires to be a
good English judge.
He is part of a
living system, which grows and de
velops and which is not mummified in any code. He must himself be a living man, with his mind growing like Goethe's
to the last hour of his life.
Even the
statutes of the realm have to be con
strued by the judge.
In common
parlance no man in England has more hourly need of his wits than one of
mission of some grave act of injustice.
His Majesty's judges. We may apply to Mr. Justice Darling the words of
Exaggeration and false sentiment poison the air of the court. It is then that the
the Times, written on English judges generally. He is a man “like ourselves,
alertness and keenness of Mr. Justice Darling's intellect delights all in court
who moves with the times, and is sen sibly aflected by the ways of looking at
except the plaintifl. He points out discrepancies in the evidence of the
things which happen to be in fashion
plaintiff’s witnesses, which even the
among thoughtful or influential persons. Thus the law is always reflecting the
defendant's counsel have overlooked,
tendencies of the age, and maintains
