Page:The Green Bag (1889–1914), Volume 10.pdf/25

 8

decide fairly upon the merits of a contro versy into which the feelings and passions of human nature enter. The greatest judges, almost without exception, have been large-minded men of a sympathetic and hu mane type. I have been told by a member of the bar, no longer living, that he once heard Chief-Justice Shaw deliver in court, as was then the custom, an opinion in a case concerning the succession to property. In the course of this opinion, he had occasion to discuss what presumption of law, if any, arises when a mother and child perish to gether in some catastrophe, as in the founder ing of a ship. There is, of course, the consid eration that the child, by reason of its weak ness and helplessness, must have perished first; but, on the other hand, there is the presumption, founded on all human experi ence, that the maternal instinct, even at such a moment, will overcome the instinct of self-preservation, and that the mother will prolong the infant's life, if it be possible, at the expense of her own. When the Chief Justice spoke of this fact, my informant said, his eyes filled with tears, though he had in mind only the abstract case, and was considering that only as it supplied a pre sumption of law. The trial of Dr. Webster, at which Chief-Justice Shaw presided, has been recalled lately by that of Bram; and it has been stated, whether truly or not, that the charge of the Chief Justice was criticised at the time as being unfair to the prisoner. But in truth it is a model of fairness, as as well as of judicial style. The manner of a charge to the jury should of course differ in some respects from the manner of an opin ion. The charge, being heard merely, and not read, should be more amplified, less concise than an opinion. Bearing in mind this necessity of reiteration to the jury, I do not see how the following paragraph, from the charge in the Webster case, could be improved either in meaning or in style : — "It is not sufficient that they [the circum stances] create a probability, though a

strong one; and if, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be ac counted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential, therefore, that the circumstances, taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral cer tainty exclude every other hypothesis." I add here an extract from one of the Chief Justice's opinions upon a point of law, because it shows how the driest subject can be redeemed by the artistic employ ment of words : — "The use of one's own books, verified by his oath, is not secondary evidence, nor is it necessary to its admission first to show the loss of other evidence. It is original, but feeble and unsatisfactory evidence. When such evidence is offered, and it is apparent from the case that the party producing it could probably furnish better evidence, and he fails so to do, or to account for its ab sence, it must greatly diminish the credit due to the feeble evidence. But this is a consideration which goes to its credit, and not to its competency, and is for the jury and not for the court." Even Judge Curtis, whom I have spoken of in a former paper on this subject as es sentially a lawyer, was nevertheless a man of much feeling, and of deep, though not of wide sympathies. There is a passage in his dissenting opinion in the Dred Scott case which shows how strong, and yet how curbed and restrained were his convictions. Speaking of the Declaration of Indepen dence and of those who signed it, he said : — "My own opinion is that a calm compari son of these assertions of universal abstract truths, and of their own individual opinion and acts would not leave these men under any reproach of inconsistency;. . . and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the