Page:The Green Bag (1889–1914), Volume 10.pdf/24

 Style in Judicial Opinions.

STYLE IN JUDICIAL OPINIONS. II. By Henry C. Merwin. WHEN I say that a judge ought to ence, is a great mistake. The ideal judge pay some attention to the style in is a man of feeling, as well as of intellect; which his opinions are cast, I do not mean, and the stronger and deeper his feelings of course, that he should be anxious to the better, provided that he has them duly adorn them with what used to be called the under control. It was finely said by Judge flowers of rhetoric. And yet a metaphor or Curtis on the occasion of Judge Sprague's "The bar simile which has liveliness or beauty is of retirement from the bench : great assistance in fixing the reader's atten have found in you that absolute judicial im tion, and in enabling him to remember the partiality which can only exist where an legal doctrine which is thus illustrated. One instructed and self-reliant intellect is joined looks through modern reports for cases of to a tender and vigilant conscience and a firm will." I find very much the same idea this kind almost in vain, but in one Massa chusetts case I find a modest trope happily expressed by Anthony Trollope who, as indulged in by a member of the court who, appears both from his novels and his auto I regret to say, has been a great offender biography, possessed in an eminent degree in point of obscurity and inelegance of style. what might be called a practical, working The suit was a libel for divorce brought knowledge of human nature. In the Small by a husband on the ground of his wife's House at Allington, where he is describing adultery, and it was a question whether the character of Captain Dale, an officer in the Engineers, Mr. Trollope says: "In evidence of the wife's misconduct immedi ately before marriage should be admitted in his profession he had been fortunate. By explanation of her conduct after marriage- industry, by a small but wakeful intelli gence, and by some aid from patronage he The court held that the evidence was admis sible, the opinion upon this point being as had got on till he had almost achieved the follows : " It is said that marriage operates reputation of talent. His name had become as an oblivion of all that is passed. But known among scientific experimentalists, there is no reason for making of this rule a not as that of one who had himself invented veil of fiction which prevents the facts from a cannon or an antidote to a cannon, but as of throwing their natural light on subsequent a man of understanding in cannons, and well fitted to look at those invented by others; events." who would honestly test this or that anti The style, as has been said, is the reflec tion of the man; and consequently a great dote; or, if not honestly, seeing that such many people imagine that a judge's style thin-minded men can hardly go to the proof ought to be as colorless and impersonal of any matter without some pre-judgment in as possible, because they think that a man their minds, at any rate with such appear of that type makes the best judge. The ideal ance of honesty that the world might be judge, as they conceive him, is a person not satisfied." only without prejudices, but also without If a thin-minded man, cannot be trusted passion or feelings. This, however, as may to decide fairly even upon the merits of a be shown both by reasoning and by experi cannon, much less can he be expected to