Page:The Green Bag (1889–1914), Volume 09.pdf/568

 Style in Judicial Opinions. sale made or attempted to be made to a parent through the agency of a minor child is illegal, it therefore becomes a sale to the minor, even if it were true that the illegality would prevent the title passing where there is a delivery, and the sale is fully executed." This paragraph could of course be "parsed " by one skilled in grammar; it is only obscure; but the following para graph taken from the same volume, is ungrammatical as well as obscure. The suit was for damages for the killing of a milk man who was struck by a railroad train while crossing the tracks between two and three o'clock in the morning. It was alleged on his behalf that the gate-tender was negli gent, and the defendant, in turn, had sug gested that the milkman was asleep in his wagon. The Court said : — "But if the deceased was not guilty of such gross negligence as, by the terms of the statute, would prevent a recovery, then, whether there was some neglect on his part, or on the part of the defendant's servant, or the conduct of both was not more ill-judged than might have been expected in the flurry of approaching danger, the intervention of the later causes would not neces sarily prevent the neglect to give warning from ' contributing to the injury.'" I do not mean to imply that the aver age opinion — if there can be such a thing — rendered by the Supreme Court of Massachusetts is so bad as the ex tracts just made would indicate; but those extracts were all taken from two, or possibly from three, volumes of recent reports. In general, it may, I think, fairly be said that modern opinions in this country arc inferior in style to those rendered by the earlier judges. Many reasons might be given for this deterioration, as that the modern judges have received an education less classi

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cal than that enjoyed by their predecessors; that the multiplication and diffusion of second-rate books and magazines in recent times have lowered the literary standard of the whole community; that the former judges were less burdened with work and therefore could bestow more pains upon their written opinions than it is possible for their successors to bestow. It is perhaps true, also, that judges, at least in this State, now take a more narrow and technical view of the law than was taken in the days of Parker and Shaw; they have widened the gap between law and life, and therefore, also, between law and literature. How refreshing arc the tropes that one finds occasionally in the opinions of by-gone jurists! Here, for example, is a passage from one of the last opinions rendered by Chief-Justice Parker, to whom Lemuel Shaw succeeded. The Judge was deciding the point that doves, while at large, cannot be the subject of larceny. He ex plained : — "The reason of this principle is that it is diffi cult to distinguish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when, im pelled by hunger or habit, or the production or preservation of their young, they seek the shelter prepared for them by the owner." The expression " free tenants of the air " is poetic, and yet it is couched in legal phrase ology. After all. a judge, like anybody else, is the better for being human, — for having sympathy with all other animals, including those which are dumb, for having a sense of humor and a sense of beaut}-. And when these qualities exist in a man, some hint of them will be disclosed even by the style in which he draws up a judicial opinion.