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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