Page:The Green Bag (1889–1914), Volume 14.pdf/103

 74

statements, made under such circumstances, are true, should be made an actionable wrong. But this is not a matter fit for dis cussion on the present occasion. If it is to be done, the legislature must intervene and expressly give a right of action in respect of such a departure from duty. It ought not, I think, to be done by straining the law, and holding that to be fraudulent which the tribunal feels cannot properly be so de scribed. I think mischief is likely to result from blurring the distinction between care lessness and fraud, and equally holding a man fraudulent, whether his acts can or can not be justly so designated.*' In common with many "strong" judges, Lord Herschell was much given to inter rupting counsel during argument. His pro pensity in this direction is said to have been temporarily checked when, during the hear ing of the case of Allen v. Flood one of his more conservative colleagues remarked with caustic humor, "We can all pretty well understand from the present proceedings what amounts to molesting a man in his business."1 Lord Halsbury. the present Chancellor, enjoys the double distinction of having risen to the woolsack from the criminal bar, and of having held this high office under three administrations. These facts are, in them selves, evidence of varied ability and marked 1 The following are Lord Herschell's ablest opinions: Allen v. Flood (1898), A. C. I; Nordenfelt v. MaximNordenfelt (1894), A. C. 535; British South Africa Co. f. Mozambique (1893), A. C. 602; Bank of England v. Vagliano (1891), A. C. 107; Solomons. Solomon (1897), A. C. 22; Russell v. Russell (1897), A. C. 395: Smith v. Baker (1891), A. C. 325; Derry v. Peek, 14 A. C. 359; The Bemino, 13 A. C. 1; Reddaway v. Banham (1896), A. C. 207; London Joint Stock Banks. Simmons (1892), A. C. 201; Trego v. Hunt (1896), A. C. 7; Concha v. Concha, II A., C. 541; White v. Mellin (1895), A. C. 155; Ooregum Gold Mining Co. v. Roper (1892), A. C. 125; Trevor v. Whitworth, 12 A. C. 409: Alexanders. Jenkins (1892), I Q. B. 797; Mackenzie v. Mackenzie (1895), A. C. 388; Wild v. Waygood (1892), 1 Q. B. 783; Tabley v. Official Receiver, 13 A. C. 523; Hauthorn v. Traser (1892), 2 Ch. 27; Commissioners of Income Tax v. Pemsel (1891), A. C. 531; London County Council v. Erith (1893), A. C. 562; Ward v. Dunscomb (1893), A. C. 369; Bamado v. McHugh (1891), A. C. 388; Wood ward v. Goulston, II A. C. 469; Makin v. Atty. Gen. (1894), A. C. 57.

force of character. If he does not possess the profound knowledge of equity which dis tinguished his more eminent predecessors, his wide experience at the bar developed other gifts not less essential than learning to the successful discharge of the multifarious duties with which the chancellor is now entrusted. A distinguished French observer has described the English Chancellor as a living image of the Trinity, embodying in his own person the three independent ele ments of government. As a peer, as speaker of the House of Lords, and as a member of the cabinet, he participates in legislation. As the creator of judges, with extensive administrative duties in regard to the courts, he represents the executive. In his judicial capacity he is president of the Court of Appeal and of the High Court, with a statutory right of sitting as a judge of first instance, if he so desires. But he is now seldom seen in the Court of Appeal, and never, I believe, in the High Court. Many years have passed since he sat as a judge of first instance, and, except when an oc casional press of business may demand his presence in the Court of Appeal, the Chan cellor's strictly judicial duties are now con fined to the House of Lords. As presiding judge of the court of final appeal, Lord Halsbury has served through many years with credit to himself and to the satisfaction of the bar. Among colleagues of greater special acquirements he has displayed un failing tact and self-reliance, and the record of his judicial service reveals the good sense which results from wide experience with men and affairs. Doubtless his pe culiar training would have given him greater distinction as chief of the common law bench; there his admirable insight into hu man nature would have been more con spicuous. But one may venture to predict that some of Lord Halsbury's opinions as a judge of appeal will be often cited for their straightforward expression and trenchant force. An illustration, with respect to a